Crime and Disorder Bill [H.L.]

HL Deb 19 March 1998 vol 587 cc888-950

Consideration of amendments on Report resumed.

Clause 29 [Local provision of youth justice services]:

Lord Falconer of Thoroton moved Amendment No. 85: Page 22, line 17, leave out ("established under section 3 of the Police Act 1996").

The noble and learned Lord said: My Lords, with the leave of the House I shall speak to Amendments Nos. 86, 94, 95 and 96. This series of technical amendments provides that for the purposes of Clauses 29 to 33 of the Bill "police authority" should have the same meaning as in Section 101(1) of the Police Act 1996. As presently drafted, the narrower definition in Section 3 of the 1996 Act is used, which excludes the police authorities for the Metropolitan Police and the City of London Police (that is, the Home Secretary and the Common Council of the City of London respectively).

This is anomalous. The Government consider that the police authorities for London should be covered in the same way as police authorities outside London in respect of the new youth justice arrangements established under Clauses 29 to 33. These include the duty to co-operate with local authorities in the provision of youth justice services and youth offending teams and the requirement to be consulted by local authorities in the formulation of youth justice plans. A similar amendment was made to Clause 17 at Committee stage. I beg to move.

On Question, amendment agreed to.

Clause 30 [Youth offending teams]:

Lord Falconer of Thoroton moved Amendment No. 86: Page 23, line 23, leave out ("established under section 3 of the Police Act 1996").

The noble and learned Lord said: My Lords, I have just spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 87: Page 23, line 40, leave out ("with").

The noble and learned Lord said: My Lords, I spoke to this amendment on the previous day of Report stage. I beg to move.

On Question, amendment agreed to.

Lord Northbourne moved Amendment No. 88: Page 24, line 3, at end insert— ("(7) The Secretary of State shall reimburse to the relevant police authority, probation service, health authority and local authority for the reasonable cost of providing persons to be members of a youth offending team, and of fulfilling the duties imposed upon youth offending teams by subsection (6) above.").

The noble Lord said: My Lords, I believe, as I think many noble Lords do, that this is an important Bill. Clauses 29 and 30 are particularly important. If they work properly, they will be of enormous benefit not only to the youth justice service but also to the young people involved. I tabled this amendment because I am concerned that the Government are in danger of falling into the same trap as the previous administration fell into in relation to the Children Act.

That Act was an innovative and important piece of legislation. It contained a number of new elements, and a number of new duties and responsibilities were laid upon local authorities. However, little or no provision was made for funding. What happened was that some local authorities did their best to ignore the obligations laid upon them; others simply robbed Peter to pay Paul. That is why, today, in many local authorities there is virtually no youth service. That is why playing fields have been sold off. There are few outdoor activities, and school visits and residentials scarcely exist in primary schools and are much rarer in secondary schools.

The Bill also imposes substantial new duties, not only on local authorities but on the Probation Service, the health services, the police and so forth. As I understand it, the obligations that a youth offending team will have to undertake include assessment and intervention; work in support of police remands and warnings; the supervision of community sentences; ensuring that there is an appropriate adult service; the provision of bail information; bail supervision and support; the placement of young people in open or secure accommodation; remand fostering and approved lodgings during the pre-trial period; court work and the preparation of reports; and involvement in through-care and undertaking post-release supervision following a custodial sentence. Other duties may also be imposed on youth offending teams by the Secretary of State.

As to funding, the government proposal appears to be that teams and associated youth justice services will be established and operated on the basis of the resources available in 1999–2000 to the local authority, social services and education departments, the Probation Service, the police and the health authority, and according to the pattern of responsibilities for youth justice work which is determined by the chief officer's group and set out in the youth justice plan. In other words, they are going to have to do that out of the money they have.

That seems unrealistic. Let us take the Probation Service, for example. The service has suffered funding cuts in real terms over the past two years, and another cut is envisaged in the forthcoming year. The Probation Service, on average across the country, uses only 10 per cent. of its resources on young people under the age of 18. Many of the duties under the provisions of this Bill will require the Probation Service to spend many more resources on persons under the age of 18. How will that be funded? Will it be by cutting back on the services to the 18 year-olds and older? I should be grateful for an indication from the Minister.

I declare an interest as chairman of the children's department at Toynbee Hall. Last week, the worker who runs the youth department—we have only two full-time workers—came to me and asked whether it would be appropriate for him to put his name down as a possible member of a youth offending team. I had to say yes, as he is a man who would do the job enormously well. But how are we going to manage to carry on our existing work if he is taken away from us for perhaps one or two days a week to operate in connection with a youth offending team?

Of course, if the measures in the Bill eventually succeed, there will be economies in other areas of youth justice which may enable local authorities, the police and the Probation Service to deploy fewer resources in other areas in order to fund the services envisaged in the Bill. But there is a timing difference. Those advantages will happen only when the provisions of this Bill have started to work. Therefore is the Treasury prepared to pump prime? The Treasury does not have a very good historical record on prevention. It is not keen to spend a penny today even if it will save a pound tomorrow. I hope that even if the Minister cannot accept the amendment as it stands, he might be prepared to say, "Yes, the Treasury is a party to this Bill. Yes, the Treasury has made the commitment that it will make this Bill work", and say that it will provide the pump-priming finance that is needed to make it work. I beg to move.

The Earl of Mar and Kellie

My Lords, these two amendments bring us face to face with reality. The proposed youth justice system will work only if it is properly staffed and paid for. Nothing will be worse than if this scheme of useful intervention were to start out with an inadequate budget. The various authorities involved will all have to put in several members of staff. Those members of staff are already doing statutory work in the main, and the switch to this new, more extensive work has to mean that the existing tasks will be given less priority. Not only will there be a requirement for more resources in the conventional sense of money; there will also be a need for new ideas. Training and development work will be needed if the new regime is to intervene effectively in the lives of those committed to it by the youth courts. I have to hope that there are lots of ideas held latently by those who will staff the youth offending teams.

I agree with the noble Lord who introduced the amendment that since the 1960s we have seen the rise and subsequent demise of the youth service. There now seems to be little hope for outdoor education, certainly in the statutory sector. The only hope now seems to be lottery funding. I must record that that has occurred in Clackmannanshire satisfactorily. However, that is an affront to the principle of additionality. The need for financial and intellectual resources to be put in place prior to the start leads me to support the amendment.

Lord Henley

My Lords, I rise merely to say that the noble Lord, Lord Northbourne, has made a very good case. I trust that the Government will be able to explain what extra resources will be available, whence those extra resources will come, and how much the Government think it will be necessary to provide to make sure that the Probation Service is appropriately funded for the new duties that are to be imposed upon it.

Baroness Thomas of Walliswood

My Lords, I wish briefly to add my voice in support of the noble Lord, Lord Northbourne. I do so as someone who has served on a local authority and on a hospital trust, and I am currently a member of a probation committee. I support the noble Lord's points in relation to the Probation Service. The cuts in the base budget that the service has suffered amount in some cases to 20 per cent. of its total annual expenditure. That means that it is already having to take money away from one area of work to keep another going. It also means that new initiatives, such as special care for drug offenders and so on, are increasingly difficult to maintain. I therefore hope that the Government will he able to say how they propose, in a situation of actual falls in base budgets, to ensure that the work that is so valuable coming out of this Bill can he carried out.

9 p.m.

Lord Hylton

My Lords, I support the amendment moved by my noble friend Lord Northbourne. Perhaps I can illustrate the kinds of things that happen at present by referring to two Written Answers to Parliamentary Questions which I have recently received, both signed by the noble Lord, Lord Williams of Mostyn.

The first concerned advisory services to asylum seekers. Under the previous government there was something called "spend to save", whereby money was paid out in order to gain future savings. This provided something, like £1/2 million a year to one specialist advisory body helping asylum seekers to present their cases, either at first instance or at appeal. This is to be cut back—virtually eliminated, I believe—in the coming financial year, although in this case the backlog of unheard and undecided asylum applications remains very large.

The second Answer concerned the savings expected to come from the prevention of crime generally, whether youth crime, adult crime or any other kind of crime. I do not have the Answer with me but I shall try to give the gist of it from memory. It was that in this case there was no system for estimating future savings and, once they had been achieved, for reallocating them between different government departments and between central government, local government and other statutory bodies.

Those examples both indicate an unsatisfactory situation which I hope the Government will be able to address, particularly in the context of the Bill.

Lord Falconer of Thoroton

My Lords, the amendments standing in the name of the noble Lord, Lord Northbourne, propose the creation of central funding arrangements for youth offending teams, with the Secretary of State reimbursing to the relevant local agencies the costs of providing members of the teams.

The Government understand the concern which has been expressed about the availability of resources for youth offending teams. We do not consider, however, that central funding arrangements are appropriate for these teams.

The Government intend that youth offending teams should bring together existing staff and services on a more effective interagency basis, building on current interagency arrangements in many areas. We believe that youth offending teams should be established and operated on the basis of the resources available to the local authority, the probation service, the police and the health authority and according to the pattern of responsibility for youth justice work which is determined locally by those agencies and set out in the youth justice plan formulated under Clause 31. This will preserve local ownership and accountability and encourage partnership between the relevant agencies. The Government consider that such a locally-based approach is more practicable than one which would require central government to consider the assessment made of local need and the resources required to meet it.

The Government acknowledge, of course, that where additional work is to be undertaken there is a case for additional resources, and the requirement for these must be properly evaluated before the new provisions are brought into force. Chapter 10 of the White Paper No More Excuses set out the Government's view of the resource implications of the youth justice measures contained in the Crime and Disorder Bill. There was an element of spending to save in relation to that.

Most of the youth justice services which will have to be provided locally should already be in place and, in some areas, interagency working is already being implemented within existing resources. Our proposals will ensure more effective interagency planning and provision of services, bringing together all those who can make a contribution to tackling youth offending.

We are, however, assessing the resource implications of the new services which will be required—for example, to deliver the final warning scheme and the new court orders, the reparation, action plan, child safety and parenting orders. We shall be piloting these new measures, some of which will build on, and in some cases replace, existing disposals and provision. We shall also be piloting the youth offending teams. The pilots will enable the costs and savings associated with the provision of youth justice services and youth offending teams to be assessed in advance of nationwide implementation. The outcome of the pilots will then help inform decisions over the timing of full implementation of these measures.

I hope that, in the light of this reassurance, the noble Lord, Lord Northbourne, will not press the amendments which stand in his name.

Lord Northbourne

My Lords, I shall not press the amendment, not because the noble and learned Lord has convinced me but because I believe it would be a waste of your Lordships' time at this hour.

The noble and learned Lord said, "No", that these things have to be funded out of the existing resources of the various organisations, the local authorities, the probation service, the police, and so on. I believe that the Government are living in an unreal world. I refer again to Tower Hamlets, about which I know a little. The interagency working is being cut back because the organisations, including the police, are very strapped for money. The police youth service has been virtually wiped out in Tower Hamlets in the past five years.

The only comfort I can glean is that the noble and learned Lord said that there will be pilot schemes. I believe the Government will come in for a nasty shock as to the additional resources needed, at least on a pump-priming basis. It may be that in five years' time the benefits of the Act will feed through and the need for funding will reduce, but in the initial period there will be a need for funding. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Youth justice plans]:

[Amendment No. 89 not moved.]

Clause 32 [The Youth Justice Board]:

Lord Falconer of Thoroton moved Amendment No. 90: Page 24, line 45, at end insert ("and (iv) the steps that might he taken to prevent offending by children and young persons;").

The noble and learned Lord said: My Lords, in moving Amendment No. 90, I shall, with the leave of the House, speak also to Amendments Nos. 91 and 93. As my noble friend Lord Williams of Mostyn explained in responding to an amendment at Committee stage on 12th February moved by the noble Baroness, Lady David, the Government believe that the welfare of children and young people is directly concerned with preventing offending by them.

These amendments build on the crime prevention foundations already in the Bill by extending the remit of the Youth Justice Board for England and Wales under Clause 32 to enable it to take a view on the steps that might be taken to prevent youth offending and thereby promote the welfare of the children and young people concerned. They also reflect the role which the youth offending teams established under Clause 30 will be able to play in work to prevent youth offending.

The main business of youth offending teams will be work with known offenders. However, Clause 31(3) already enables youth offending teams to undertake work to prevent youth offending and for that to be included in the youth justice plan formulated by the local authority under Clause 31(1). That will allow local authorities which have a duty under paragraph 7(b) of Schedule 2 to the Children Act 1989 to take steps to encourage children and young people not to commit offences, and the other local agencies flexibility as to the relative involvement in preventive work of the youth offending team and the agencies themselves, including the local authority social services department.

Given its function of monitoring the work of youth offending teams, the Government consider it appropriate that their possible role in preventing youth offending should be reflected in the functions of the youth justice board under Clause 32(5). The Government also consider that, to complement its role in monitoring the operation of the youth justice system under subsection (5)(a) and advising the Home Secretary on how the new principal aim of that system of preventing youth offending might most effectively be pursued under subsection (5)(b)(ii), the youth justice board should be able to offer advice on what might be done to prevent young people becoming involved in crime and entering the youth justice system in the first instance.

Amendment No. 90 therefore amends the board's advisory functions under Clause 32(5)(b) to include the provision of advice on the steps that might be taken to prevent offending by children and young people. Amendments Nos. 91 and 93 extend the board's function under subsection (5)(d) to obtain information from the relevant local agencies—local authorities, police authorities, probation committees and health authorities—to cover information to inform its advice under subsection (5)(b).

The youth justice board's exercise of those functions will be subject, under Clause 32(7), to directions and guidance given by the Secretary of State. That should ensure that the work of the board in relation to preventing youth offending complements the Government's overall approach to crime reduction. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 91: Page 25, line 3, after ("(a)") insert (", (b)").

The noble and learned Lord said: My Lords, I have already spoken to Amendment No. 91. I beg to move.

On Question, amendment agreed to.

The Earl of Mar and Kellie moved Amendment No. 92: Page 25, line 13, at end insert ("and () themselves to commission research on the introduction into the youth justice system of childrens' panels to replicate for England and Wales the relevant provisions of Part III of the Social Work (Scotland) Act 1968.").

The noble Earl said: My Lords, Amendment No. 92 has the purpose of bringing the principles of the children's panel system into the new youth justice system. I am pleased to have the opportunity to bring the much-admired but never copied Scottish children's panel into a head-to-head debate with the proposed youth justice system.

The children's hearings are the product of the Kilbrandon Report and form Part 111 of the Social Work (Scotland) Act 1968. As a social work student in 1968 I recall a briefing on the Bill by the senior civil servant adviser for that part of the Bill.

I have attended both the juvenile court in England and children's hearings with social work clients and their families, often collecting them to ensure their attendance and so preventing an adjournment. The children's hearings can be convened within a day of an offence being committed. I believe that that is a "fast-track" procedure.

At the children's hearing the family, the three panel members, the reporter and the social worker sit at a table together and do not leave it until a decision is reached. There are no adjournments while the Bench sorts out its decision. At the beginning of the hearing the child and the parents are asked if they accept the grounds of referral. The reporter to the children's panel will have received a report that the child is either in need of statutory measures of care or that an offence has been committed. If the family accepts the grounds of referral, the hearing proceeds to deal with the child's future. If the family does not accept the grounds of referral, the hearing is adjourned and the family assents to the sheriff in chambers for an approved hearing.

The case in chambers is led by the reporter and, once the sheriff has determined that there is a case to answer, the family is sent back to the reconvened children's hearing. If the sheriff finds the case not proved, then that is an end of it. The same panel members will see the case through to the eventual discharge and any supervision requirement made. The proceedings are as informal as possible and, though obviously a formal event, are more likely to allow the family to participate than in a formal court setting. The single table, the equal chairs and the small room are conducive to achieving the philosophical aim of doing the best thing for the welfare of the child.

I recall appearing with families in the English juvenile court. The setting was that of any other court room. Though the magistrates were specially selected, they still sat "up there" on the bench. If we were lucky, we would be called forward with the family to stand below the bench and speak at reasonable proximity to the magistrates. Otherwise, the family had to discuss the issues across the open formal court. I accept that that description came from my personal experience in the 1970s, but I wonder whether it has changed much since then.

The amendment would require the youth justice board to establish a judicial procedure similar to a children's hearing. This would lead to a less formal and more future oriented process in which the child and the family would have a greater and more meaningful part. The rapid response of the initial hearing, being within a very short space of time, has considerable merit. The treatment plans can be implemented very speedily except where the grounds of referral are not accepted. In my experience, the grounds of referral are usually accepted. This means that there is not a requirement to prepare for prosecution beyond the receipt of evidence. It is here that the fast track is achieved; that is, by not having to go through due process unless insisted upon. I beg to move.

9.15 p.m.

Lord Falconer of Thoroton

My Lords, this amendment would give the youth justice board the function of commissioning research on the introduction into the youth justice system in England and Wales of the system of the children's panel which operates in Scotland. We are keen to look at and learn from the effectiveness of the Scottish children's hearings system. Research commissioned by the Scottish Office is expected to be completed later this year. This research includes a study into decision-making in the children's hearings system, and a three-year longitudinal study examining outcomes for a cohort of children referred to reporters, who have been described by the noble Earl in 1995.

The Scottish system has a number of positive features. In particular, that system appears to benefit from a clear separation of decisions about guilt from decisions on disposal. An equally important feature of the Scottish system, however, is that it operates entirely outside the criminal justice system. It also considers care and protection issues as well as cases which involve offending. It cannot therefore simply he replicated within the framework of the criminal youth court system in England and Wales.

The Government's plans for reforming the youth court are designed to ensure that its structure and procedures are clearly directed at changing offending behaviour. In particular, our longer term proposals for reform are designed to provide a new opportunity for those appearing before the younth court for the first time to be dealt with following conviction by a new youth panel. The panel would be responsible for agreeing with the young person a "contract" which would be enforced by the youth court. The contract would ensure that the young person made amends to the victim or the community at large and would tackle the causes of their offending behaviour.

We believe that the reforms we have proposed will help to shape a more effective youth justice system for England and Wales for the next century. Our approach combines the principles of restorative justice—of restoration, reintegration and responsibility—with more traditional punitive measures, which must be available to the courts in order to protect the public. The result should be a more streamlined and effective system, with a clearer focus on preventing offending.

The terms of this amendment have caused us to reflect on the scope of the youth justice board's functions under subsection (5)(f), (g) and (h) of Clause 32. As currently drafted, these enable the board to identify and promote good practice in the operation of the youth justice system and the provision of youth justice services; to make grants to local authorities and other bodies to develop, or commission research into, good practice in working with young offenders; and itself to commission such research.

We have concluded that these functions need to be broadened so that the youth justice board is able to identify and promote, and make grants and commission research in respect of, good practice both in the operation of the youth justice system and the provision of youth justice services and in relation to work to prevent offending by children and young people. This would enable the board to commission research of the type proposed by the noble Earl.

The Government intend to bring forward amendments to this effect at Third Reading. I hope that, in the light of what I have said, the noble Earl will not press his amendment.

The Earl of Mar and Kellie

My Lords, it is not often that I receive an answer like that, or should I say so favourable an answer as that. I am particularly grateful for the favourable description of the children's panel system with its fast track, informality and participation which are considerable features of it. From 1968 until now is so many years that I hope we do not have to wait quite so long to decide whether or not we think that the youth justice system was working well.

The noble and learned Lord has said that he hopes to bring forward other amendments. I am grateful for that and willing, therefore, to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 93 Page 25, line 26, after ("(5)(a)") insert (", (b)").

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 94: Page 25, line 37, leave out ("established under section 3 of the Police Act 1996").

On Question, amendment agreed to.

Clause 33 [Supplementary provisions]:

Lord Falconer of Thoroton moved Amendments Nos. 95 and 96: Page 25, line 41, at end insert ("and this section"). Page 26, line 2, at end insert— (""police authority" has the meaning given by section 101(1) of the Police Act 1996:").

The noble and learned Lord said: My Lords, I have already spoken to these Amendments. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 40 [Powers of magistrates' courts exercisable by single justice etc.]:

The Deputy Speaker (The Viscount of Oxfuird)

My Lords, we now come to Amendment No. 97 in the name of the noble Lord, Lord Dholakia—

Lord Williams of Mostyn

My Lords, without being discourteous to the noble Lord, Lord Dholakia, perhaps I could be of assistance. There are a number of grouped amendments here and I can put it generally, if I may, but it is the Government's intention to meet the requirements or the requests of the movers of Amendments Nos. 97, 98, 99, 100, 103, 101, 102, 105 and 104, not in entirety but generally. It may he helpful, therefore, if I simply indicate what the Government's view is. That may or may not satisfy the various movers; the noble Lords, Lord Dholakia and Lord Goodhart, and the noble Baronesses, Lady Anelay and Lady David. I am advised that the noble Lord, Lord Dholakia, should move the amendment formally before I make any rejoinder to something he has not said.

Lord Dholakia moved Amendment No. 97: Page 31. leave out lines 22 to 24.

The noble Lord said: My Lords, the Minister has been very kind to me in the past, and I am sure he intends to be so again. I beg to move.

Lord Williams of Mostyn

My Lords, the amendments to which I referred are in a general group. They relate to problems which a number of noble Lords had in relation to the powers under Clause 40. Amendments Nos. 100 to 104 and 97 restrict the powers in Clause 40 which could be made available to justices' clerks or, in the case of Amendment No. 97, to a single justice. There were concerns expressed in Committee by a number of noble Lords and I promised that we would consult further. I think we have delivered on that promise.

Last week I met a delegation, including the noble Baronesses, Lady Anelay and Lady David, and the noble Lord, Lord Goodhart, together with representatives of the Magistrates' Association and the Justices' Clerks' Society. As recently as Monday the Home Secretary had a useful meeting with the Lord Chief Justice, who had also expressed concern. The Home Secretary wrote to the Lord Chief Justice with some proposals and I am able to say that the Lord Chief Justice has indicated that he is generally content—generally, I have to say, not perfectly.

We always intended that the powers in Clause 40 should be exercisable by a justice sitting alone, not a full court. The Lord Chief Justice sees no difficulty in that. We intended that the listed powers should be capable, if suitable rules were made, of being exercised by clerks but that it might be necessary—indeed it would be necessary—for the powers to be restricted when given to clerks. The drafting of the clause, which has been explained earlier, made provisions for those restrictions.

Following very strong representations, and they were reasoned representations, we wondered whether there should be restrictions on the face of the Bill. We have come to the conclusion that it is possible to do that and furthermore that it is right to do that. I can tell your Lordships that we propose to move suitable amendments at Third Reading to make clear the extent of the powers which clerks would be capable of exercising subject to rules.

The most objectionable power as seen by your Lordships was that of remanding a defendant in custody. The power to remand on bail was also opposed by the Magistrates' Association. It was never the Government's intention that clerks should be empowered to determine disputed issues of bail or custody. The amendment in the name of my noble friend Lady David would prevent clerks from remanding a defendant in custody at all, even where he had previously been so remanded by a court and was content for the remand to be extended. That would mean that clerks would be precluded from conducting pre-trial reviews in any custody cases, which would detract significantly from courts' ability to organise themselves efficiently. Our proposal, therefore, is to withhold from clerks the power to remand a defendant in custody, with the one exception, which we believe to be reasonable and well justified, that a clerk would be able to renew with the defendant's consent a remand in custody which has previously been made by a court. I believe that to be a reasonable outcome.

As for remands on bail, we would again propose that the power to vary conditions or to impose new ones should be exercisable by clerks only with the parties' consent. A clerk would be capable of renewing bail on the same conditions without consent. Clerks would also be given a new power to grant bail to a defendant who had answered to police bail in appearing at an early administrative hearing, since without this power clerks would be unable to conduct such hearings at all. Again, we believe that that is reasonable.

There has been a good deal of concern about pre-sentence reports. We see some force in the argument that to give an indication of seriousness would involve the clerk too closely in the sentencing process. We are therefore content to remove that part of the paragraph as far as clerks are concerned.

Amendment No. 97 in the name of the noble Lord, Lord Dholakia, would go much further, removing the power to order a pre-sentence report altogether, not only from a clerk but from a single justice. We do not think that that is right. It would mean that many cases in which a guilty plea was made at a pre-trial hearing would have to be put before a full Bench merely to order a pre-sentence report when it was apparent that that was wanted.

Paragraph (m) of Clause 40(1), relating to prohibition of publication was a matter of concern to the Lord Chief Justice. It was specifically raised by the noble Lord, Lord Goodhart, when we had our discussion, which all present found useful and fruitful. The noble Lord pointed out that it might involve a clerk in taking decisions which might be controversial and subject to criticism. We thought about that and we have concluded that the noble Lord is right. We think that that power should be excluded from clerks and reserved to a single justice.

In relation to the power in paragraph (o), about orders for joint or separate trials, the Government are happy to accept the suggestion of the noble and learned Lord the Lord Chief Justice that we should insert a provision requiring the parties' consent to that decision being taken by a justices' clerk.

There remains one power—that in paragraph (n), about giving directions for the conduct of the trial—about which the Lord Chief Justice still has some reservations. We wondered whether this power could be limited by requiring consent. But this is a wide-ranging power, covering such issues as the timetable for the case and attendance of witnesses, and it is fundamental to the role of the clerk in the management of cases rather than their disposal. We think that to require the parties' consent would damage that provision because it gives the mischievous an opportunity to be unco-operative and to put a spoke in the wheel.

We are not persuaded of the case for Amendment No. 99, which needs the parties' consent to the exercise of the power to bring forward the date of a hearing to which the defendant has already been bailed by the police. The power can be exercised by a court. It is seldom needed. It is likely to be used even less in the future because of the Clause 37 requirement for defendants to be bailed to the next available court hearing. The parties' consent was not necessary when a date was originally set by the police and we do not see why it should be needed when a single justice or a clerk alters it.

We do not think that the drafting suggested in Amendment No. 98 is necessary. Some of the powers in Clause 40 relate to extending time limits and to the grant of bail. It might be helpful if I set out our thoughts because we intend to introduce a number of amendments at Third Reading. First, we should like to amend Clause 34 to make it clear that time limits may be extended where a court orders separate trials in the interests of justice. Secondly, we wish to introduce a new clause to strengthen the use of sureties in bail cases to complement the wider use of securities in Clause 45.

We hope to introduce an amendment to the bail provision in the Criminal Justice and Public Order Act 1994, which is currently the subject of two actions in the European Court of Human Rights. At Third Reading we intend to table amendments to Clause 40 which take account of many of the points that have legitimately troubled your Lordships. We are looking again at the finer points of the clause for further improvement.

Amendment No. 105 in this group is in the names of the noble Baroness, Lady Anelay, and the noble Lord, Lord Henley. We agree that not all court clerks would be suitable to exercise the power specified. Justices' clerks may be authorised under rules to exercise the powers of a single justice, and justices' clerks may in turn delegate those powers at their discretion to other court clerks. We intended that before the piloting of Clause 40 the consultation procedure provided in subsection (3) should address, among other things, the question of who, apart from the clerk to the justices himself, should be authorised. I am not sure that this amendment is precisely what is needed. I apprehend that the noble Baroness put it forward on the basis that it might stimulate further thought. It has had that consequence. We are quite happy to consider whether there is scope for restricting the extent to which Clause 40 powers can be delegated by justices' clerks to other clerks, but we wish to retain local flexibility which is very important. On the basis of that indication I hope that the noble Baroness is reasonably content for this evening.

9.30 p.m.

Baroness Anelay of St. Johns

My Lords, I hope that I can be both reasonable and content but perhaps not necessarily at the same time. I thank the Minister for his early indication about amendments to Clause 40 that the Government may table at Third Reading. With the leave of the House, perhaps I may respond briefly. I am aware that at Report, when the Minister has spoken at an early stage, those who have tabled amendments may comment before the noble Lord, Lord Dholakia, determines whether or not he wishes to proceed with his amendment.

I should like to place on record my thanks to the noble Lord, Lord Williams of Mostyn, for the meeting held at my request last Thursday. It was a most helpful meeting for all those who attended. I know that the noble Viscount, Lord Tenby, would have attended that meeting had he not had a previous long-standing engagement. Those who attended made non-party, non-partisan representations on the core matters of concern in regard to bail and the ordering of pre-sentence reports with an indication of the seriousness of the offence by a justice's clerk.

I have listened carefully to what the Minister has said. I shall read carefully in Hansard the implications of the proposals that he has made this evening, but at first sight it appears that most of my objections have been met. However, in this world one does not get everything for which one asks. It appears that the Government have listened to the principles underlying my objections. I note at this stage that the pre-sentence report will still be granted by a justice's clerk or a magistrate sitting alone, which is almost on a par with the procedure in the Crown Court where a report is ordered in virtually every case. The query in my mind is what implications that has for the Probation Service in preparing such reports, because it appears that consequently there will be a huge increase in its workload. I am sure that the Government will consult the service about the implications of the proposals. I shall consider whether there are any outstanding issues when I have read Hansard.

The Minister has referred to Amendment No. 105 in my name. I am relieved to hear that the Government are looking closely at what experience a justice's clerk should possess before he carries out the powers to be delegated to him under Clause 40. I end simply by thanking the Minister for the remarks that he has made. When we come to Amendment No. 105 I shall not be moving it.

Lord Goodhart

My Lords, I, too, am grateful for the concessions made by the Minister, which have met just about all our requirements on this matter. They will have saved your Lordships from wading through a good deal of what I would describe as alphabet soup in the next few minutes, which we would otherwise have had to do.

I am especially grateful that the points that I raised on prohibition of disclosure—what happens in a magistrates' court—have now been reserved to a justice and cannot be made by a justices' clerk. At this stage I obviously cannot give any blanket undertaking that we shall not raise any objections to whatever amendments the Government may introduce on Third Reading, because we have not yet seen them, nor do we have detailed knowledge of the scope of what they would cover. However, broadly speaking, this issue can now be taken to have been settled.

Lord Dholakia

My Lords, I am grateful to the Minister, the noble Baroness, Lady Anelay, and my noble friend Lord Goodhart who has kept me informed about discussions with the Minister. A number of points made to the Minister has substantially been met. I shall study Hansard and wait to see what happens on Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 98 to 105 not moved.]

Lord Falconer of Thoroton moved Amendment No. 106: Page 32, line 18, leave out ("with").

On Question, amendment agreed to.

Clause 43 [Provisions supplementing section 42]:

[Amendment No.106A not moved.]

Clause 44 [Crown Prosecution Service: powers of non-legal staff]:

Lord Meston moved Amendment No. 107: Page 35, line 20, at end insert ("for non-imprisonable offences").

The noble Lord said: My Lords, I shall speak to Amendments Nos. 107 to 110. These amendments are a simplified version of amendments moved in Committee to introduce certain safeguards on the face of the Bill to what is now Clause 44. The matter was debated on the fourth day of Committee on 24th February.

Clause 44 will enable non-legal staff in the CPS to decide whether or not to institute and whether or not to continue criminal proceedings, and will enable them to conduct criminal proceedings, other than trials, in magistrates' courts. Those functions are not always straightforward. They can involve difficult decisions with implications for the defendant, and for his or her liberty; implications for the victims of crime; and implications for the running of the courts.

The people who exercise those functions should have the requisite skill, training and experience. For those reasons an amendment to the proposed new Clause 44 was moved in Committee. It attracted support from several speakers. It also attracted reassurances from the noble and learned Lord the Solicitor-General that there will be appropriate safeguards, and that lay staff so employed will have appropriate training, will be supervised and will be independent.

Amendments Nos. 109 and 110 now seek to place those assurances on the face of the Bill. Amendments Nos. 107 and 108 seek to limit the delegation of functions to non-imprisonable offences. If that is not acceptable to the Government, it is all the more important that Amendments Nos. 109 and 110 are on the face of the Bill. The amendments have the support of the Association of First Division Civil Servants, the Law Society and the Bar Council. I beg to move.

Lord Falconer of Thoroton

My Lords, I not only understand, but to some extent I share the concern about the wide scope of Clause 44 which underlies these amendments. It is clearly true that the business which could in theory be given to professionally unqualified staff to deal with is very considerably wider than that which, in practice, it would ever be intended that they should take on. I am anxious, therefore, to do all that I can to clarify the position, both by a readiness to bring forward suitable amendments and by giving assurances as to practice.

The problem is that it is not at all easy to define what kind of cases lay staff ought to deal with. It is clear that they should not handle contested trials, and they are already excluded. It is also clear that they would in no circumstances be asked to deal with indictable-only cases, and it would be straightforward to reflect this by excluding such offences from the ambit of the clause. But beyond that, the category of offence is an unreliable criterion for exclusion. Restricting lay staff to dealing with non-imprisonable offences, for example, would not be appropriate because it would prevent them from dealing with some imprisonable offences—for example, simple shoplifting where the facts are not in question—which would be entirely suitable for them, while still allowing lay presenters to deal with non-imprisonable offences—for example, where a public figure was involved—which would not be suitable.

For these reasons, it is inevitable that the clause will leave the director with a wide discretion as to which of the cases not in the excluded categories could properly be dealt with by lay staff. It would be necessary for detailed guidance on the cases in which lay reviewers and lay presenters would be deployed to be produced by the CPS, and our intention is that this guidance should be made public.

It will certainly be necessary for the director to take steps to ensure that lay staff are fully trained in the exercise of these new responsibilities, and a training programme would be established which lay staff would be required to attend before they would be permitted to carry them out.

Amendment No. 109 deals with the question of supervision, which was raised by several noble Lords in Committee. There is no dispute that lay staff should indeed be subject to the supervision of professionally qualified Crown prosecutors. There is already a requirement that they should be so supervised. It is imposed by subsection (3) of the new Section 7A, where the reference to instructions given to him by the director". (which is taken from the existing Section 7A of the Prosecution of Offences Act 1985) covers, by virtue of Section 1(7) of that Act, instructions given by a Crown prosecutor.

As a result of the debate in Committee and the comments of the noble Lord, Lord Meston, I am conscious that there is a general desire to restrict the scope of this clause. I have already indicated that we are willing to remove indictable-only offences, and it may be possible—we are still considering this—to tighten the drafting in other ways. I hope that in the light of these assurances, and of what I have said about the publication of guidance, noble Lords will withdraw these amendments. We will produce amendments on Third Reading.

Lord Meston

My Lords, on that basis, I am happy not to press the matter. I am grateful for the further assurances which the noble and learned Lord has provided. I hope that he can indicate not later than Third Reading when the guidance, at least in draft form, can be expected. I am happy to wait until the Third Reading and until we have sight of the proposed government amendments. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 108 to 111 not moved.]

Clause 51 [Periodic reviews]:

[Amendment No. 112 had been withdrawn from the Marshalled List.]

9.45 p.m.

Lord Falconer of Thoroton moved Amendment No. 112A: Page 41, line 2, at end insert— ("() Where the order was made by a magistrates' court in the case of an offender under the age of 18 years in respect of an offence triable only on indictment in the case of an adult, the court's power under subsection (4)(b) above shall be a power to do one of the following, namely—

1. (a) to impose a fine not exceeding £5,000 for the offence in respect of which the order was made; or
2. (b) to deal with the offender for that offence in any way in which it could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months;

and the reference in paragraph (b) above to an offence punishable with imprisonment shall he construed without regard to any prohibition or restriction imposed by or under any enactment on the imprisonment of young offenders.").

The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 165. These two amendments make provision for a scenario in which a magistrates' court imposes a drug treatment and testing order on a 16 or 17 year-old offender in respect of an offence which would be triable only on indictment were he aged over 18.

Following those circumstances, if, after the offender had attained the age of 18, the court then proposed to vary the requirements of the drug treatment and testing order, either at a periodic review in the case of the first amendment or on the application of the supervising officer in the case of the second, and the offender then refused to consent to the variation proposed by the court, the court would be entitled to resentence him for the original offence as though he had just been convicted of it.

However, in the absence of these amendments the magistrates' court has no power to deal with him for the offence triable only on indictment. Therefore, these two amendments confer the necessary powers on the magistrates' court to resentence the offender in the scenario described.

The amount of the maximum fine, which is £5,000, is specified on the basis that it should be no less than that specified in respect of an offence which is triable either way in the case of an adult. I beg to move.

On Question, amendment agreed to.

Clause 52 [Supplementary provisions as to orders]:

Lord Falconer of Thoroton moved Amendment No. 113: Page 41, line 27, leave out ("court has power (under that Schedule) to review the order") and insert ("order may be reviewed (under that Schedule)").

The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 114, 205 and 206. Amendments Nos. 113 and 114 provide that a drug treatment and testing order made on appeal by the Court of Appeal or the House of Lords should be treated as though it had been made by the Crown Court. They are made in order to clarify the requirements in Clause 51 of this Bill that reviews are heard and associated reports received by the court which made the order.

We should not want that requirement to mean that an order might have to be reviewed by the Court of Appeal or the House of Lords. That would mean imposing potentially costly travel expenses on the offender and would detract from the intention that the court should form part of a local triumvirate—the probation officer and the treatment provider comprising the other parts—with oversight of the order.

Amendments Nos. 205 and 206 will alter Schedule 2 to the Criminal Justice Act 1991 to reflect the changes to Clause 51 made by Amendments Nos. 113 and 114. I beg to move.

Lord Henley

My Lords, I hate to be a bore and I intervene only to ask a question for clarification. The noble and learned Lord said that he was addressing Amendments Nos. 113 and 114, 205 and 206. I appreciate that the groupings are merely informal and are not binding but the groupings list refers to Amendments Nos. 113, 114, 197 and 206. For the sake of clarity, I should like the noble and learned Lord to confirm that the groupings are wrong and he is right, which I am sure must be the case.

Lord Falconer of Thoroton

My Lords, I am right and the groupings are wrong.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 114 Page 41, line 40, at end insert— ("() Where a drug treatment and testing order has been made on an appeal brought from the Crown Court, or from the criminal division of the Court of Appeal, for the purposes of sections 50 and 51 above it shall be deemed to have been made by the Crown Court.").

On Question, amendment agreed to.

Baroness Masham of Ilion moved Amendment No. 114A: After Clause 52, insert the following new clause—

("Young offenders: detention

DETENTION OF GIRLS UNDER 18

. An offender who is convicted of any offence punishable with detention and who is a girl under the age of 18 shall he kept separate from adults and shall be detained in a separate institution such as local authority secure accommodation, or in a separate part of an institution also holding adults, unless, after assessment and in exceptional circumstances, it is held to be in the best interests of the offender to be held with adults for a temporary period.").

The noble Baroness said: My Lords, I am particularly grateful to the noble Baroness, Lady Mallalieu, the noble Lord, Lord Hurd of Westwell, and the noble Lord, Lord Hooson, who have attached their names to Amendment No. 125. I am also grateful to my noble friend Lord Tenby who wanted to put his name to this amendment. Indeed, I am grateful to all noble Lords who supported this amendment in Committee, and, as I said, I am especially grateful to the noble Baroness, Lady Mallalieu, who I see is still present in the Chamber. At the same time, I should express my thanks to the noble Lord, Lord Williams of Mostyn, for his invitation to meet him at the Home Office yesterday. We had an interesting discussion with officials present.

Your Lordships will notice that I have tabled two new clauses, the first contained in Amendment No. 114A and designed to clarify the aim of my original amendment, Amendment No. 125, to separate juveniles from adults as soon as possible and not wait for the introduction of the detention and training order. The second proposed new clause, contained in Amendment No. 128A, simply seeks to include Scotland.

The amendments would make it unlawful for girls aged under 18 to be held with adults in prison unless in exceptional circumstances. That would bring the UK into line with the UN Convention on the Rights of the Child (Article 37(c)), to which the Government entered a reservation. It requires that juveniles and adults be held separately—that is, without the reservation.

The main point of the amendments is that girls aged 15, 16 and 17 who are still children under the Children Act should be held not in prisons but in local authority secure accommodation units, unless exceptional circumstances apply. These units are designed for dealing with this complex age group and are staffed by people with particular commitment to, and considerable experience of, dealing with adolescents in trouble. This group seems to be getting more difficult and aggressive; research is needed on how to prevent this particular problem escalating. As the inquiry that I chaired for the Howard League found, these young girls could become "lost" inside the prisons. I have yet to meet a prison governor or a prison chaplain who wants this young age group in his establishment.

Many of these girls have dropped out from education. If they are to see a future and hold down good jobs they need education and not be locked up in a cell at 5 p.m. which often happens in prison. Secure units provide the national curriculum and the children in their care can take GCSEs, and even A-levels, if they are willing and able to do so. They also provide expert teaching for those with special needs, such as those who have difficulty with reading and writing. None of the prisons that we visited was able to provide the national curriculum.

In a secure unit, every child is assessed by a psychiatrist and a clinical psychologist on admission. Individual and group therapy work is done with them and is directly related to each child's particular needs, whether it be counselling for sexual and physical abuse, which many of them have suffered; help in dealing with drug and alcohol misuse; or, work with their offending behaviour and anger management. The Prison Service is simply unable to provide anything comparable because it does not have the staff or the resources: indeed, prisons can be universities of crime and drug abuse for young people.

The Minister was concerned that units for girls would be small and that children with social problems would be mixing with children with criminal records. However, that is already done. Indeed, some of the children have worse records than those in prison, but the standard of supervision is high in the local authority secure units.

The Minister said that if we had a number of distinct local authority units we might well end up with a number of their secure accommodation units containing as few as five persons. In fact, it is growing practice now to divide local authority secure accommodation units into smaller units of around five or six people. The new secure unit in Wales operates this system and it is planned for Stamford House in London to do the same. Because there are small numbers, the individual needs for meaningful and constructive regimes for education, training and personal development can be achieved.

I heard yesterday that the Home Office is creating three or four juvenile units within existing prisons. I cannot accept that this is a suitable solution for the young girls. I hope that it will be helpful for the 18, 19 and 20 year-olds of whom there are considerable numbers. I hope your Lordships will agree with me for the following reasons. While such a measure would fulfil the strict obligation of Article 37 it would not meet the spirit of the convention as a whole. The culture and atmosphere of the units would inevitably take on the characteristics of an adult prison. There would he the same damaging psychological effect and stigma for the children and their families of having been in an adult gaol. Staff with a special affinity for, and who have received training in dealing with, what we agree is an exceedingly complex group will not be available. An extremely high ratio of staff to girls would be necessary if the high levels of bullying and drug taking found in prisons were not to be repeated in the units—a level of staffing the Prison Service is unlikely to be able to provide.

The youngsters would be competing for resources with the main adult population. It is important to note that with only three or four units the girls would be even further away from their homes and families—a factor which has been identified as being important as regards rates of reoffending. I have the highest regard for the Minister. I hope he agrees that this vulnerable and at risk group of 15 to 17 year-olds needs helping to see the point of a useful, crime-free life. I beg to move.

Lord Judd

My Lords, I congratulate the noble Baroness on having returned to the fray on this amendment this evening. Her commitment is legendary and greatly respected in all parts of the House. In view of the late hour I do not think it necessary to repeat all the detailed arguments which the noble Baroness put so clearly. I have a great sense of solidarity with the Minister and his colleagues in their immense responsibilities. However, I think there comes a time to call a spade a spade. I believe the Minister knows as well as the noble Baroness and the rest of us that the prison environment and neighbourhood is no place for these young girls. The challenge to government is to ensure that this is changed as rapidly as possible.

It is not a question of whether one builds a secure unit separated from the rest of the prison. The whole issue is related to the psychology and the ambience of the prison environment. What we are concerned about—I know the Minister is also concerned—is that these young prisoners should, above all, be rehabilitated. We touched on the point earlier. It is not just that we want to win a young person back to civilised behaviour in society, as I expressed it earlier. It is also a matter of simple economics. If we do not rehabilitate young prisoners, the future cost to society will be high indeed. As is so often the case with public expenditure, we look at the immediate costs in isolation from the long-term costs of not being prepared to afford what is necessary in the immediate setting.

Once again I congratulate the noble Baroness on staying with her cause. I hope that the Government will address her anxieties, if not tonight, then on some future occasion. I am certain that what is happening at the moment is not acceptable. Improvised solutions may have all kinds of administrative rationale behind them but they are not meeting the need for rehabilitation of the prisoner. That is the biggest challenge of all. I therefore wish strongly to associate myself with the case that has been put.

10 p.m.

Lord Goodhart

My Lords, in the absence of my noble friend Lord Hooson, who put his name to Amendment No. 125, I simply say that the noble Baroness, Lady Masham, has made an extremely powerful case for her amendment today, as she did at Committee stage. I would not wish to add anything to what has been said by the noble Baroness and the noble Lord, Lord Judd. They have far more experience of these matters than I do. From these Benches, we support the amendment of the noble Baroness.

Baroness Mallalieu

My Lords, I have put my name to Amendment No. 125. I wish to support the noble Baroness. No one who read the powerful report from the Howard League inquiry, which the noble Baroness chaired, could be in any doubt that the very last thing that emotionally damaged adolescent girls need is to be locked up in a prison environment with older, more sophisticated, emotionally damaged women.

The Minister has, I think, the sympathies of us all because he has inherited a situation, and one which is worsening. The present numbers of 60 to 80 per year represent a three fold increase since 1992 as more girls are sent to prison. We all recognise his difficulties in making provision for small numbers of this kind which will involve a different regime and specially trained officers. But the present position surely cannot be allowed to continue indefinitely.

The Government have said on many occasions, both prior to the general election and subsequently, that all legislation would be scrutinised to ensure that it treated men and women fairly. This seems to me to be one area in which a real start could be made. These teenagers, few in number though they are, may not be the most deserving youngsters in our community but they are every hit as much—perhaps even more—in need of special help and guidance as their male counterparts; and our present penal system is currently treating them less well for the single reason that they are female.

I hope that the Minister will give us hope that something is to be done in the very near future.

The Earl of Mar and Kellie

My Lords, Amendment No. 128A refers to Scotland. I wish to speak about the special circumstances which pertain there.

Amendment No. 128A is aimed at separating off young women under the age of 18 from adults, or at least from those over 18 in Scotland. The aim is laudable. The intention that girls under 18 should not be in prison but maintained in secure accommodation is clearly central to the approach embodied in the children's hearing system.

Where this may not hold water is in the ability of the secure accommodation unit to contain the very unruly behaviour of a few of the girls. That may be a matter of staff training or of inadequate facilities. The Scottish women's prison at Cornton Vale typically houses about 180 prisoners of all ages. The current average population of young offenders aged between 16 and 21 is no more than 12 to 15. This small group can include those remanded on serious charges; those on unruly certificates; those "revolving door" clients who are chronically disturbed; and one or two young women serving very long sentences.

The policy over the past few years has been to run the YOI and the prison on a mixed basis for practical reasons. The advantage outweighs the acknowledged disadvantage. The mixing of this small group of young offenders with adults has a stabilising effect, reducing volatile behaviour among the younger women. Many of the young offenders are older than their years in terms of raw life experience, characterised by the expression, "Seventeen and 18, going on 40".

They are vulnerable young offenders, but they are most vulnerable to being bullied by their own age group. I can assure the House that there never has been any use of Cornton Vale prison for girls under 16. I realise that I am in a difficult position here as I believe that the amendments have merit, but the circumstances seem to make them unworkable.

Lord Williams of Mostyn

My Lords, everyone has spoken with great feeling, and with great generosity in recognising the situation that we have inherited. I believe all noble Lords who have spoken feel strongly about the matter; and so do I. I say, without any equivocation, that I have great sympathy with the overall aim of these amendments.

We have specified in Clause 28 of the Bill that, It shall be the principal aim of the youth justice system to prevent offending by children and young persons". That was done as an aspect of deliberate policy. We want to make the system quicker, and fundamentally we must have earlier interventions where those can work.

The new detention and training order is focused on this group. Half the length of the order will be served in custody and half under community supervision. It will be possible for good or bad progress to be reflected in the release date from custody. It is vital that there should be consistent, continuous through-care from the point of sentence to the point of completion of the period of community supervision.

Under Clause 63(7) of the Bill, youngsters subject to the new detention and training order can be placed in: a secure training centre; a young offender institution; a youth treatment centre; local authority secure accommodation; or, such other accommodation provided for the purpose of restricting liberty as the Secretary of State may direct". Those are alternatives that we have chosen specifically to deal with the point that arose earlier; namely, although young people may be of the same age, their requirements are different, and those requirements are not always related simply to chronological age because their backgrounds are different and the remedies wanted may also differ.

These amendments would go wider than the proposed detention and training order. The proposal would encompass Section 53 children—those sentenced by virtue of the 1933 Act for very serious offences—and those sentenced to detention in a young offenders institution and under the secure training order, although that applies only to those aged 12 to 14. As the noble Earl pointed out, it would also apply to Scotland.

A good deal has been achieved by the Prison Service since the Howard League report. I was particularly grateful that the noble Baroness, Lady Masham, was able to join us in the Home Office yesterday. I think I can say as objectively as possible that the response of officials was universally open-minded. They acknowledged the difficulties and were eager to see what could be done within a realistic time-scale.

Since the Howard League report was published, all young offenders—that is, those under 21—are held in designated young offender accommodation. We are looking to the further separation of young offender and adult accommodation. On 10th March, according to the latest figures I have, there were 83 sentenced girls under 18; of those, over half were held in separate young offender blocks, or wings in open prisons, or in mother and baby units. We have agreed plans for a further two physically separate units in establishments which currently hold a further 25 juvenile girls. Of the 17 Section 53 girls held on 31 January this year—that is, those between 15 and 17 years of age and held for really serious offences, 13 were in local authority secure accommodation, including every one of the 15 year-olds. There were two 16, and two 17 year-olds in Prison Service accommodation. It is not a perfect situation; however, I believe we have begun to make progress.

There is a working group, about which the noble Baroness was informed, and about which she knew anyway, on age mixing in the female estate. We are considering the options, including whether or not juvenile girls should be held with juvenile boys in some circumstances, because there are problems in others; whether they should be held in totally separate units in the female prison estate; and what can be done about local authority secure units, to which the noble Baroness significantly directed her remarks.

There are difficulties with all of those options. One has to face the fact that among the 90 girls some are very difficult to manage. They can be a risk to the younger and more vulnerable individuals who are sometimes held in local authority units. We want to have the most flexible range of remedies for these girls on an individual basis rather than set out in legislation that they should be held in one place or another.

The accommodation of some of these girls in local authority secure units may not meet their needs as effectively as accommodation in secure training centres or, in some cases, the kind of unit that the Prison Service is seeking to provide. I say again that not all local authority secure units provide as good a level of care as is desirable.

It is very difficult to see offending behaviour programmes necessarily having the same priority in an establishment which is not exclusively devoted to dealing with offenders. We must bear in mind that many of the local authority units are small, providing 16 to 18 places. They take a wide age range, from 10 upwards. I understand and deeply sympathise with the proposition that is put about the vulnerability of these young girls. However, we must not forget the vulnerability of the younger children in local authority secure units of age 10 upwards. There is often a significant difference between a 10 year-old and the young girls to whom the noble Baroness referred. It is very difficult in units that small, with an age range that wide, to provide suitable accommodation in such a small establishment.

The age range is narrower within the Prison Service, from 15 to 17. What are we doing for juveniles in prison? The noble Lord, Lord Judd, made a perfectly reasonable and typically generous request. We are looking to a careful assessment of each individual's health, social, educational and vocational needs; programmes to tackle individual needs in education, training for work and offending behaviour; and regular and formal reviews of each individual's plans. I believe that experience shows that, when an individual gets into the system, the system often becomes more important than the child. I believe that the structural internal discipline of regular formal reviews is very important. We want the co-operation of the agencies and, where possible, the support and involvement of families.

The Children Act does not apply in prisons. However, we wish to reflect its principles in the operation of regimes for young offenders. An additional £3 million has been put forward to enhance regimes in six establishments, including two juvenile establishments and two women's prisons. That money is to develop the kind of regime to which I referred earlier.

I understand and share the concern about inappropriate mixing of vulnerable female prisoners with other female prisoners who can bully them, oppress them and lead them further astray. We have made a start. We have not been able to deliver everything. As I believe that an imposed discipline is good for us as well as for those who minister to children. I am happy to undertake to report back to your Lordships on the further progress we have achieved in improving facilities for girls when we introduce the new detention and training order in the summer of 1999.

I have not offered a perfect answer to these difficult problems. The truth is: I have no perfect answer. All I can say is that, whether it is Ministers in the Home Office—not least the Secretary of State—or whether it is the officials, to whom I pay grateful tribute, we are determined to do what we can to address this problem which, though numerically small, is a blot on our community. The noble Earl's figures are correct. In Scotland there are 20 young female offenders, only five of whom (according to my last figures) are under 18; most of them are held in Cornton Vale, which is an all-female institution. If I understood him correctly, the noble Earl said that some of the regime there seems to be fruitful and working well. I am happy for that reassurance.

I repeat that I do not have a perfect answer. All I can offer is a commitment to do the utmost that we can and to reiterate my offer to return to your Lordships with a progress report in what may seem a long time away to a young person of 15 to 17, but which seems a realistic timescale to me in which to be able to return with a full report. I am conscious that what I have said will be recorded; having been recorded, it will be read and will rightly be put to me once more when I have my opportunity to report.

10.15 p.m.

Baroness Masham of Mon

My Lords, I thank all noble Lords, particularly the noble Lord, Lord Judd, who is really committed to this subject. I thank also the Minister for his full answer, which will be read carefully and digested.

I am concerned that the Minister did not mention education in those units. I feel that the 15 and 16 year-olds particularly need a full school day's work. Next Wednesday the Cross-Bench Peers have a debate on the problems of the prisons. I know that some noble Lords will be visiting prisons before then and will see the situation for themselves. It was interesting to hear about Scotland. I am a full-blown Scot and did not want to leave Scotland out; but I know that the system is different and I therefore thank the noble Earl for looking into the situation in Scotland.

I should like to take this matter away because it is important. It can mean a difference to a young person's life. We have one more stage of the Bill to come, at which time I will have the right to bring back the amendment if I need to. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 53 [Reprimands and warnings]:

Lord Goodhart moved Amendment No. 115: Page 42, line 21, at end insert ("or (c) where the offender has previously been warned, the constable considers that to continue a rehabilitation programme arranged under section 54(2)(b) below would he more likely to prevent the commission by the offender of further offences than prosecuting him for the offence and the constable considers the offence to be not so serious as to require a charge to be brought;").

The noble Lord said: My Lords, in the absence of my noble friend Lord McNally, who is unwell, and my noble friend Lord Thomas of Gresford who should have departed from Euston station around 15 minutes ago, it falls to me as third string to move this amendment.

By no means for the first time, but possibly for the last time during the debate on this Bill, I wish to complain of the rigidity with which the Government have approached many of the aspects of the Bill, in particular the aspects of cautioning and sentencing.

The Bill as it stands allows a warning to be given only if the offender has not previously been warned or, where the offender has previously been warned, the offence was committed more than two years after the date of the previous warning and the constable considers the offence to be not so serious as to require a charge to be brought. I entirely understand and sympathise with the Government's desire to curb the practice of giving repeat cautions which, as the Government made clear, do nothing but create an attitude in the young offender that he does not have to worry about justice. That is wrong, and it is right that repeated cautions should not be given in normal circumstances. I would have hoped that this matter could be dealt with by guidance from the Government to police forces rather than by a rigid statutory restriction on the power to give a warning.

What the amendment provides for is very far from being a general power to give a second warning. It is a tightly limited amendment which merely authorises a second warning to be given within the two-year period where the constable considers that the continuation of a rehabilitation programme would be more likely to prevent the commission by the offender of further offences than prosecuting him for the offence. This seems to be a very reasonable amendment and it is certainly one which in no way will give rise to the abuse of constantly repeated cautions without prosecutions.

In those circumstances, and taking into account the fact that the amendment is supported by the National Association of Probation Officers, it is my hope that even now the Government will be prepared to consider this limited extension of the power to grant a second warning and give a certain degree of increased flexibility to the way in which offences by young people are dealt with. I beg to move.

Lord Williams of Mostyn

My Lords, Clauses 53 and 54 are, as the noble Lord rightly said, designed to replace the existing cautioning arrangements, which have been abused and perverted. I do not think it is fair to say that the Government have approached the Bill with rigidity. On 11 distinct aspects we have varied our original views after carefully giving consideration to what has been put to us. I do not think that the experience of Clause 40 points to rigidity.

Lord Goodhart

My Lords, I was not complaining about the Government's rigidity regarding criticisms of the Bill but about the Government's rigidity in the way they have imposed restrictions on the powers of the courts and constables.

Lord Williams of Mostyn

My Lords, this amendment deals with constables and constables alone. Perhaps I can show that rigidity is not a necessary consequence of our suggested regime.

The noble Lord is suggesting additional grounds for issuing a second warning. First, a police officer must consider that the continuation of the previous rehabilitation programme would be more effective; and secondly, the new offence must be one that clearly does not merit prosecution. We debated this in Committee and I have listened again this evening. Certainly, as a matter of practice, the question as to whether rehabilitation would be more effective than prosecution will be extremely difficult for a constable to judge. I think it would be virtually impossible for a police officer to deal with it personally. It seems to me that he would have to consult the youth offending team in question. Then we would be back to our old, well known friends, delay and uncertainty. The young person would be left in a kind of limbo, wondering what is going on, and the whole point of this regime—a quick, clear and known response to offending behaviour—would be lost. One would also have variation in practice between one police force and another and the kind of inconsistency that undermined the effectiveness of the current cautioning arrangements.

We believe that, if a young person commits a further offence, the proper course of action is for the police officer in the appropriate case to charge that young person. Then it is for the Crown Prosecution Service to take a decision as to whether prosecution is the right way forward. The Crown Prosecution Service, as I mentioned earlier, can take into account the issue of public interest, including the detail of the young person's offending history. Therefore, that is the flexibility which the CPS introduces into this story. It is not rigidity, because the Crown Prosecution Service has a discretion which it is capable of exercising.

We believe therefore that it is for the CPS to take the decision about discontinuance or not, to take the decision in line with the code for Crown prosecutors in full knowledge of all the facts of the case and bearing in mind the injunction set upon the CPS that it must take into account the public interest in a child case. We believe that that is what we ought to be doing. I am quite satisfied, not in a spirit of "We thought of it therefore we cannot change" but in the genuine feeling that the cautioning practice has gone so sadly astray that it has done infinite harm to many young people. We believe that the appropriate component of flexibility is provided for by the CPS discretion. I hope that the noble Lord, Lord Goodhart, will not he so rigid as not to realise the attractions and virtue of the argument I have put forward.

Lord Goodhart

My Lords, I thank the Minister for that reply. While I recognise that there is an element of flexibility through the possibility that the CPS will decide to take no action on the prosecution, in the kind of circumstances that are envisaged by this amendment it would be much better for the appropriate and necessary decision to be taken by the police officer who is much closer to the offence and to the offender than the CPS. Certainly, so far as delay is concerned, it seems to me that it is likely, even if there is a necessity to consult the youth offending team, that it would also be quicker if dealt with by the police than by the CPS. However, this is not a matter on which I feel it would be appropriate to press the Government further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 116: Page 42, line 27, after ("station") insert ("and, where the offender is under the age of 17,").

The noble Lord said: My Lords, in moving Amendment No. 116, I speak also to Amendments Nos. 117 and 118. In Committee your Lordships agreed a government amendment which sought to bring the provisions of the Bill in respect of the role of appropriate adults into line with those under the Police and Criminal Evidence Act 1984. But the noble Lord, Lord Henley, in commenting on the amendment, now subsection (6) of Clause 53, was concerned about drafting. He made it plain that that concern was not related to the purpose of the amendment but to the form of it. He asked me to think again and to consult parliamentary counsel to see whether we might improve clarity. I have done that. I think the noble Lord was right. These amendments are to meet the noble Lord's concern. Amendment No. 118 removes subsection (6) of Clause 53. Amendments Nos. 116 and 117 give effect to the same policy objective by putting the references directly into subsection (5) of Clause 53. I hope that your Lordships think that that is an improvement and I am sure that the noble Lord, bearing in mind his paternity, will bless his offspring. I beg to move.

Lord Henley

My Lords, I rise merely to say that I thank the noble Lord and offer my blessing to these amendments.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 117 and 118: Page 42, line 29, after ("and") insert where he is under that age,"). Page 42, line 36, leave out subsection (6).

On Question, amendments agreed to.

Clause 54 [Effect of reprimands and warnings]:

Lord Williams of Mostyn moved Amendment No. 119: Page 43, line 37, leave out from ("warning,") to ("make") in line 38 and insert ("the court by or before which he is so convicted— (a) shall not").

The noble Lord said: My Lords, Amendments Nos. 119, 120 and 198 are grouped. I shall speak to them together, if I may. The three amendments—the last is a consequential amendment to Schedule 7—are to strengthen the existing provisions of subsection (4) of Clause 54. Subsection (4) provides that a conditional discharge may only be used in exceptional circumstances where a person is being sentenced for an offence committed within two years of receiving a warning. Our aim is that young people appearing before the court in these circumstances should receive a sentence which is both proportionate and directed at preventing further offending behaviour. In some cases, a conditional discharge will be sufficient to meet these objectives, but in very many cases it will not. The amendments would require a court, when issuing a conditional discharge on the grounds of "exceptional circumstances", to state its reasons. We believe that that provides the discipline so that "exceptional circumstances" are not interpreted too widely or used inappropriately.

There is such a provision in the Criminal Justice Act 1991 in relation to the use of custodial sentences. These amendments reflect a suggestion made by the Magistrates' Association and an amendment tabled in Committee by the noble Lord, Lord Henley, the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Baroness, Lady Anelay, which was, in the event, not moved. I beg to move.

On Question, amendment agreed to.

10.30 p.m.

Lord Williams of Mostyn moved Amendment No. 120: Page 43, line 42, at end insert ("and (b) where it does so, shall state in open court that it is of that opinion and why it is.").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 61 [Detention and training orders]:

Baroness Hilton of Eggardon moved Amendment No. 121: Page 49, line 45, after ("offender")") insert ("aged 12 or over").

The noble Baroness said: My Lords, Clauses 60 to 65 introduce a new detention and training order for 10 to 17 year-olds. Amendments Nos. 121, 122 and 124 seek to restrict detention and training orders to those aged 12 and over. Offenders aged 10 and 11 can currently be sentenced to long-term detention under Section 53 of the Children and Young Persons Act. They can be sentenced to a supervision order with a residence requirement which requires the local authority to place the young person in local authority accommodation for specified periods of up to six months. Offenders aged 10 and 11 can also be taken into care through civil care proceedings if they are out of control and, if necessary, be held in local authority secure units. That range of powers is adequate to ensure that juveniles can be detained wherever this is genuinely necessary.

Past experience shows that removing young people from family and community life is likely to magnify their difficulties. Not only is the normal maturing process interrupted, but reintegration back into normal life presents great difficulties and can lead to long-term problems. All forms of institutional care or custody for young offenders have high reconviction rates; 89 per cent. of juveniles leaving Prison Service custody are reconvicted within two years.

In Committee we rehearsed at great length many of the examples relating to, and the evidence about, the consequences to young people of being placed away from home in residential care and the very high reconviction rates that occur in almost every instance. When these amendments were debated in Committee, on 3rd March, the noble Lord, Lord Williams of Mostyn, said: It is not yet apparent that there is a need to introduce this order for 10 and 11 year-olds".—[Official Report, 3/3/98: col. 1104.] Therefore, one must question why that power is written into the Act at all. It seems astonishing that the Government propose to include a power in the Bill for which, in the Minister's words,

It is not yet apparent that there is a need".

The detention of children aged 10 and 11 is such a serious matter that Parliament surely needs evidence that wider powers to lock up that age group are genuinely necessary before empowering the Home Secretary to introduce such powers by delegated legislation.

I should like also to address Amendment No. 124, which is grouped with Amendments Nos. 121 and 122. Amendment No. 124 would prohibit the placing of children under 15 in Prison Service custody under the detention and training order. The current minimum age for being sentenced to Prison Service custody is 15. However, as it stands, Clause 63(7) apparently enables a child of any age given a detention and training order to be placed in a Prison Service young offender institution. This could mean a child as young as 12, or, if the lower age range for the order is reduced from 12 to 10 by order under Clause 61(2)(6), a child as young as 10 years old.

When this amendment was debated in Committee on 3rd March, the noble Lord, Lord Williams of Mostyn, said: In this order we want to offer flexibility in the arrangements for dealing with young offenders. We want to be able to place individual young offenders in accommodation according to their individual needs and maturity".—[Official Report, 3/3/98: col. 1113.]

It is entirely reasonable that the Government should want to retain flexibility to place older but less sophisticated youngsters in local authority accommodation rather than Prison Service custody. However, it is extraordinary that the Government should want to retain discretion to place those aged 14 or even younger in Prison Service custody. Sending young children to Prison Service custody is not just a recipe for criminal contamination but also, all too often, for intimidation, self-harm and suicide attempts. I beg to move.

Lord Goodhart

My Lords, in the absence of my noble friend Lord McNally, I rise to speak to the amendment. In view of the lateness of the hour, I hope that the noble Baroness will understand if I do no more than say that, for the reasons she gave, we too support the amendment.

Lord Henley

My Lords, I rise to support in particular the first amendment in the group to which the noble Baroness has spoken, Amendment No. 121. My chief concern is that the Government seek a power at a time when, as the noble Lord. Lord Williams, said at Committee stage, it is not yet apparent that there is a need to introduce this order for 10 to 12 year-olds. As the noble Baroness made clear, this is a matter of extreme seriousness. We believe it is right that a power of this sort should be sought when the need for that power has been demonstrated and not beforehand. To do it by seeking an order-making power and then to introduce it at a later point is not the right way to go about it. If the Government believe that there is a need for such a power in due course they will have an adequate opportunity to secure it in a criminal justice Bill, or whatever, in the next Session. They can then seek that power and justify it to the House. I believe it is wrong to give that power to the Government, even if it is by means of order-making power subject to Parliament's approval—obviously, Parliament would not have the chance to amend it—in advance of the need being demonstrated. I hope therefore that the noble Baroness will pursue her amendment and press it on this occasion.

Lord Williams of Mostyn

My Lords, we believe that courts should have the power, where there is a clear need, to impose custodial sentences upon 12 to 17 year-olds. The detention and training order is to replace detention in a young offender institution and the secure training order. The noble Baroness spoke of the high reconviction rate. I entirely agree. But the detention and training order regime has not been available so far with the split that I described earlier. I shall not weary your Lordships further with that.

I repeat what I said before. I said it deliberately. It is not yet apparent that there is a need to introduce the order for 10 and 11 year-olds. I hope that the need does not arise. We are considering a power that the Secretary of State may take if the evidence demonstrates it. I assure noble Lords that we propose to monitor the courts' use of the detention and training order for those over 12 to see what happens in practice and how the regime makes a difference. It is an entirely different concept. We also intend to monitor the underlying rate of offending by 10 and 11 year-olds. It is only at that stage that the Secretary of State may come to the conclusion that he wishes to extend the age range.

I turn to Amendment No.124. Some of the ground has been covered earlier in the debate relating to young female offenders. This amendment is deliberately designed to restrict options for placing young offenders subject to detention and training orders in different types of secure accommodation according to their age. We are looking for the options, the flexibility: young offender institution secure training centre, local authority secure accommodation, youth treatment centre or other accommodation provided for the purpose of restricting liberty, as specified by the Home Secretary.

If Amendment No. 124 were carried, it would hamper flexibility. A robust, vigorous, mature, sophisticated 14 year-old, a few weeks away from being 15, but subject to a full two-year detention and training order, could be placed in a secure training centre until his release, possibly after his 16th birthday, where his presence could be disruptive to the welfare and well-being of other trainees, but he could not be in a young offender institution which might be better suited to his needs, his maturity, and any specific problems he might pose.

Such an example shows that there is no benefit in arbitrarily limiting discretion. I understand the concerns about inappropriate mixing. We believe that the amendment, curiously, would reduce the flexibility which is required to put young prisoners in the most appropriate accommodation, according to their needs, according to what is best for their possible rehabilitation, and of course taking account of the risk they pose to themselves and to others. We do not believe that the amendment would be helpful to that cause. I hope that my noble friend will not seek to press the amendment.

Baroness Hilton of Eggardon

My Lords, despite the challenge thrown out by the noble Lord, Lord Henley, I do not intend to press the amendment to a Division. However, I am deeply disappointed that my noble friend did not produce a more sympathetic or constructive response to the amendments. I do not believe that it is necessary for 11 and 12 year-olds. One could legislate for all sorts of things which might be possible in the future. One could imagine all sorts of strange things that one might introduce, on the possibility that they might be necessary at some future time. That does not seem an adequate reason for introducing them into Acts of Parliament. However, as it is, at the moment, we hope, a remote contingent possibility that we are going to lock up 10 and 11 year-olds in that way, I beg leave to withdraw the amendment.

Lord Henley

No.

10.42 p.m.

On Question, Whether the said amendment (No. 121) shall be agreed to?

Their Lordships divided: Contents, 9; Not-Contents, 21.

Division No. 3
CONTENTS
Addington, L.	Goodhart, L.
Anelay of St. Johns, B. [Teller.]	Mackay of Drumadoon, L [Teller.]
Dholakia, L.
Elton, L.	Mar and Kellie,E.
Ely, Bp.	Russell, E.
NOT-CONTENTS
Alton of Liverpool, L.	McIntosh of Haringey, L. [Teller.]
Ashbourne, L.
Carter, L. [Teller.]	Mallalieu, B.
Clinton-Davis, L.	Masham of Ilton, B.
Darcy de Knayth, B.	Monson, L.
Falconer of Thoroton, L.	Ponsonby of Shulbrede, L.
Farrington of Ribbleton, B.	Puttnam, L.
Hardie, L.	Simon, V.
Hilton of Eggardon, B.	Whitty, L.
Hoyle, L.	Williams of Mostyn, L.
Lawrence, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

10.50 p.m.

[Amendment No. 122 not moved.]

Clause 62 [Duties and powers of court]:

[Amendment No. 123 not moved.]

Clause 63 [The period of detention and training]:

[Amendments Nos. 124 and 125 not moved.]

[Amendment No. 126 not moved.]

Clause 68 [The Sentencing Advisory Panel]:

Lord Williams of Mostyn moved Amendment No. 127: Page 56, line 6, leave out from beginning to ("as") in line 7 and insert ("remuneration").

The noble Lord said: My Lords, this is a minor amendment making plain that the panel may be paid a fee. That is much simpler and in line with other such bodies. The previous formulation would have been unnecessarily complicated and might even have required a Division at this time of night. I beg to move.

On Question, amendment agreed to.

Baroness Flather moved Amendment No. 128: After Clause 69, insert the following new clause—

RACIAL AGGRAVATION: DUTY OF PROSECUTION

(" .—(1) In relation to a prosecution for any offence it shall be the duty of the prosecution to bring to the attention of the court any information or material which contains evidence that the offence was racially aggravated. (2) Section 22 above applies for the purposes of this section as it applies for the purposes of sections 23 to 25 and 69 above.").

The noble Baroness said: My Lords, on Second Reading, I mentioned that in 1994 I had placed before your Lordships' House two amendments to a Criminal Justice Bill. One provided aggravated penalties for crimes where racial motivation was displayed; and secondly, a corollary to that, that there should be a duty on the prosecution to inform the court of any racial element in the crime.

I am grateful to the Government for putting in this Bill a comprehensive package of measures to deal with racially aggravated crime. It covers almost every eventuality. I have looked very carefully at Clause 69 and again, that places before us the ways to deal with the other clauses and puts a duty on the prosecution.

However, there is no duty on the prosecution to place before the court all the racial elements in any crime that is being dealt with. A chain breaks at its weakest link. A considerable amount of plea bargaining takes place. I shall not mention the names of noble and learned Lords who have accepted that fact and agreed that it does take place. But I am sure that noble and learned Lords on the Benches opposite know perfectly well that plea bargaining takes place. One of the elements of plea bargaining is to present a slightly more anodyne picture of the crime than may have been the case had the defendant not agreed to plead guilty to a lesser charge.

It is my greatest fear that all this superstructure, which has been built up and which gives expectations to ethnic minorities in this country, will not deliver if, somehow or the other, the actual elements of racially motivated behaviour are fudged before the courts. Therefore, I have tabled the amendment to place on the face of the Bill quite clearly a duty on the prosecution, whether or not there is plea bargaining or a plea to a lesser charge, to ensure that all racial elements in a crime are clearly placed before the courts before sentencing takes place. I beg to move.

Lord Dholakia

My Lords, I rise to express my support for the noble Baroness. She is absolutely right when she says that, in the whole process of looking at racially motivated offences, this is indeed a very weak spot. All we are seeking to do is to place a duty on the prosecution to ensure that offences which are racially aggravated are properly presented as such to the courts. That is only right because the courts, judges and magistrates now have what are commonly called, "sentencing guidelines", which take into account racially aggravated offences. However, they can only take such elements into account if they are brought to their attention.

We should perhaps look at the record of the Crown Prosecution Service. I was a member of the Home Office working party some years ago which went across the country to find out precisely what was happening. Repeated complaints were made stating that, whereas the police were able to identify racial aggravation factors, the CPS failed to bring those factors into the open courts. As a result, minorities who read newspapers often find that cases which they know contain elements of racial motivation are not fully examined in the courts. In turn, the magistrates and the judges are powerless to deal with the situation.

About six months ago the CPS improved its record, after a considerable amount of training. But, even now, racial motivation is not brought out in at least 20 per cent. of cases. I find it difficult to accept that situation. Unless we place such a duty on the prosecution—and that is all that the noble Baroness is asking—we shall not get to the root of the problem. I believe that it is right and proper that the CPS will, in turn, have to question the police if they fail to point out the racially aggravated factors when the files are submitted.

Once we place this particular duty upon the prosecution, I believe that the whole process will work as we expect it to work. To their credit, the Government have highlighted racially aggravated offences; indeed, they accepted my amendment on racially aggravated damages on Tuesday. I believe that this little amendment will complete the jigsaw and that that, in turn, will build the confidence of the minorities whose expectations are that people who commit such offences ought to be dealt with severely by the courts.

11 p.m.

Lord Falconer of Thoroton

My Lords, I am grateful to the noble Baroness for tabling the amendment and also to the noble Lord, Lord Dholakia, for his intervention. I know that the noble Baroness has considerable knowledge in this area. I recall that the question of a duty on the prosecution to bring to the attention of the court all evidence relating to the racial element of the offence was one which the noble Baroness raised on Second Reading. I was not present at the time but I am also informed that she raised the same point during the passage of the Criminal Justice and Public Order Act in 1994.

The noble Baroness is absolutely right to say, as she did in 1994, that there should be a stipulation placed on the courts to regard evidence of racial motivation and hostility as an aggravating factor meriting an increased sentence. That is exactly what Clause 69 is intended to do. The noble Baroness has also said in the past that Parliament should send a strong message that racially aggravated crime is unacceptable. I hope that she would agree that the new offences do just that.

With regard to the specific points raised by this amendment, the Government recognise the importance of these matters being brought to the court's attention. Both the police and the CPS record racial incidents.

The definition of "racial incident" was drawn up by the Association of Chief Police Officers to include any incident where it appears to a police officer that a complaint involves a racial element, or where there is an allegation of racial motivation made by any person. It is therefore a wide-ranging definition. Once the papers have been passed by the police to the CPS, the CPS will also look at the evidence to consider whether the facts amount to a racial incident and flag them up as such if the police have not.

The noble Lord, Lord Dholakia, said that some years ago the Crown Prosecution Service may not have been as effective as it should have been in relation to identifying racial incidents. The noble Lord will know that quite recently the Crown Prosecution Service issued a report specifying its racial monitoring and providing figures of the number of cases with a racial element. The figures in that report identified more cases with a racial element than those identified by the police. I am sure that one could not say that the CPS monitoring is perfect but it is much improved. I think it is right to say that it is now sensitised to racial elements in crime.

The Government do not believe that the amendment is either necessary or appropriate to create the statutory duty that both speakers have asked for. First, as the noble Baroness will know, there is already a duty on the prosecution to inform the court of all relevant circumstances relating to the offence, including aggravating features. That duty applies as much to racial aggravation as to any other feature.

Secondly, the Government believe that the creation of the new offences will strengthen existing safeguards and ensure that a higher priority is given to the identification of the racial element of the crime both in relation to the gathering and the presentation of the evidence. The prosecution will now have to consider the racial element of the crime not only as an aggravating factor but also to decide whether the evidence suggests that there is a reasonable possibility of securing a conviction under the new racially aggravated offences.

We believe that the racial element will now have a higher priority in the minds of the police and prosecutors because it forms part of the offence itself. The noble Baroness referred specifically to the practice of what she described as plea bargaining. Whatever one describes it as, it is perfectly plain that on many occasions prosecution and defence will discuss the terms on which pleas to lesser offences will be accepted. In relation to that sort of process which is perfectly proper, the prosecution—prosecuting counsel and the CPS together—have a discretion to decide what is appropriate in the public interest. I should have thought it would be wrong to single out racial aggravation as being the one area where there was not an element of discretion in that regard. In some cases it will be perfectly appropriate not to proceed with a particular charge.

We are currently considering how best to evaluate these provisions after they are implemented. This is an area which the post-introduction study could usefully analyse; namely, the extent to which the prosecution brought to the attention of the court racial elements. I hope that this will reassure the noble Baroness that we have come a considerable way since the debate in which she participated so effectively in 1994, and that she will be sufficiently reassured about the Government's commitment in this Bill and elsewhere to tackling racial crime that she will feel able to withdraw her amendment.

Baroness Flather

My Lords, I received an interesting answer from the Minister. I hope that all noble Lords listened as carefully as I did. The noble and learned Lord told us that it is perfectly proper to plea bargain, to get a defendant to plead to a lesser charge. It is simpler, more straightforward, more convenient; the defendant receives a sentence, and there is no trial.

There are two ways of looking at the issue. One response is that plea bargaining occurs, and it is a good thing that more defendants do not get away. Someone from the CPS to whom I spoke not so long ago asked me candidly whether I would prefer someone to get away with a crime than to be tried in court for the charge best fitted to the circumstances. I said that I would rather someone got away with it having been tried by the courts on the charge best fitted rather than to be sentenced on a charge which did not fit the offence.

I fear greatly—more than I did 10 minutes ago—that many more plea bargainings will take place as the prosecution and defence agree between themselves what should and should not be placed before the court. Far fewer cases of racially aggravated crimes will come before the courts than should if the Minister's statement is to be accepted. Clearly, it would be in the best interest of a defendant to plead guilty to a lesser charge on the basis that the racial aggravation part of the offence is not placed before the court, as the Minister said that it is perfectly proper for the prosecution and defence to agree what should be placed before the court if there is a guilty plea. I am certain that we shall not make the progress that the Bill purports to make unless the whole iceberg, and not just the tip of it, is exposed to public knowledge.

I shall not divide the House; it is not the time to do so. I shall read carefully in Hansard what the Minister said. But we live to fight another day. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128A not moved.]

Clause 71 [Extended sentences for sex and violent offenders]:

The Lord Advocate (Lord Hardie) moved Amendment No. 129: Page 58, line 27, at end insert— ("() indecent assault;").

The noble and learned Lord said: My Lords, in moving this amendment, I shall also speak to Amendment No. 130. Before addressing the amendments I should like to bring to your Lordships' attention that we propose to bring forward at Third Reading some technical amendments to the operation of Clauses 71 and 72.

Amendments Nos. 129 and 130 are technical amendments. The purpose of Amendment No. 129 is to include indecent assault in the definition of a sexual offence for the purpose of imposing an extended sentence. The reason for the amendment is to achieve consistency between the sexual offences set out in Schedule 1(2) to the Sex Offenders Act 1997 and a definition in this clause of a sexual offence in respect of which an extended sentence may be imposed.

The purpose of Amendment No. 130 is to omit the provision which would have extended the power to make supervised release orders in the case of children detained following conviction on indictment. The amendment removes a redundant provision. Children detained under Section 208 of the Criminal Procedure (Scotland) Act 1995 are subject to mandatory licence on their release. Licence always takes precedence over any supervised release order.

Subsection (2)(b) of Clause 71 would extend the court's powers to impose a supervised release order to include children detained under Section 208. In practice, that would never have effect because the licence would always apply. The provision is therefore unnecessary. The reason for tabling this amendment is to remove a redundant provision. I beg to move.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 130: Page 59, leave out lines 45 and 46.

On Question, amendment agreed to.

The Deputy Speaker (Lord Elton)

My Lords. before calling Amendment No. 131, I must tell your Lordships that, if it is agreed to, I shall not be able to call Amendment No. 131A.

Clause 80 [Offences racially aggravated]:

Lord Mackay of Drumadoon moved Amendment No. 131: Page 69, line 14, leave out from ("apply") to ("offence") in line 17 and insert ("when a judge imposing sentence on an accused in respect of an offence is satisfied that the").

The noble and learned Lord said: My Lords, this amendment is designed to remove part of what is now Clause 80 of the Bill, previously Clause 79, dealing with the procedure that is to apply for sentencing accused persons in Scotland when they have been convicted of offences which, in terms of the definition set out in subsection (2) of Clause 80, can be described as racially aggravated. It reflects certain reservations that I expressed at Second Reading—reservations that were fortified by a letter which the Lord Justice General of Scotland, the noble and learned Lord, Lord Rodger of Earlsferry, wrote to the Secretary of State for Scotland in October last year.

Following the Committee stage I wrote to the Lord Advocate about the matter and explained my concern, which can be put shortly. At the present time, as the Lord Justice General said in his letter, he is satisfied, as indeed I am that if a sentencing judge, having heard the evidence in a trial or having heard the prosecutor narrating the circumstances of an offence falling upon a plea of guilty, is satisfied that the offence was one in which racial motivation was what lay behind it, he would take that into account as an aggravating factor. The noble and learned Lord. Lord Rodger, said in his letter that he was equally certain that the Appeal Court would support that view in the event that the trial judge's sentence was appealed against.

My concern was that by setting out the statutory procedure in the Bill, far from ensuring that racial motivation was an aggravating factor which led to higher sentence in more cases, the contrary might in fact prove to be the case. My concern was based on two matters: first, the need to libel such an aggravation in the indictment or complaint; and secondly, uncertainty, at least so far as the face of the Bill is concerned, as to the basis upon which the sentencing judge was to be satisfied that the offence had indeed been racially aggravated.

It is of interest to contrast the terms of Clause 80 with those of Clause 69, dealing with the position in England, where there is no need to set out in any charge or any document served on the defendant before the trial the detail that requires to be libelled by virtue of the provisions of Clause 80.

In seeking to meet those concerns, the noble and learned Lord the Lord Advocate has tabled two other amendments, Amendments Nos. 131A and 139A. Perhaps I may deal with the second of those first.

The need to have evidence from only one witness—in other words, to dispense with the need for corroboration—to some extent meets the second of my concerns. But the first remains. I can envisage situations where, through no fault of the prosecutor, it is not set out on the complaint or the indictment that an assault, breach of the peace or malicious mischief whatever it may be, was racially motivated. Those facts may not be apparent from the terms of the police report placed before the prosecutor. Yet, when the case proceeds to trial, it may be abundantly clear to everyone in court that there was indeed such motivation.

In that event, even if the judge were entirely satisfied that the offence had been racially motivated he would not be entitled to take that into account in sentencing. One would envisage defence counsel drawing that matter to the attention of the sheriff or the judge in public and, far from meeting the concerns of victims who are members of ethnic minorities having quite the contrary effect. When one looks at the practicalities of the matter, I am concerned that this is a very retrograde step.

One can envisage situations in sheriff and jury or High Court trials when the aggravation is libelled but, for whatever reason, the jury deletes that aggravation from the charge when a conviction is returned and yet the judge, who has listened to the case, is entirely satisfied, as indeed are members of the public and the victim. The judge would be bound by the provisions of this clause to disregard the matter, contrary to the position, as I understand it, in England.

I shall be interested to hear from the noble and learned Lord the Lord Advocate what are the views of the courts in Scotland as to the amendments which he has brought forward. He has sought to meet the concerns expressed in my letter to him, but, as it is the judges who will have to operate the sentence, I believe it would be valuable for your Lordships to be informed of that. It is against the background that this may lead to practical difficulties that I move Amendment No. 131.

11.15 p.m.

Lord Hardie

My Lords, with your Lordships' permission, I shall speak to Amendment No. 131, moved by the noble and Learned Lord, Lord Mackay of Drumadoon, and to government Amendments Nos. 131A and 139A, which are grouped together. The noble and learned Lord has already referred to government Amendment No. 131A. I must apologise to your Lordships for the lack of notice given of the government amendments, but I wrote on 16th March to the noble and learned Lord, Lord Mackay, and the noble Earl, Lord Mar and Kellie, about the Government's intentions, and a copy of the letter was placed in the Library of your Lordships' House.

I am grateful to the noble and learned Lord, Lord Mackay, for the interest he has shown in this provision and his assistance in identifying important issues which arise. The amendments which I shall move today follow from the correspondence we exchanged and which is in the Library of your Lordships' House.

All these amendments seek to clarify the standard of proof to be applied to racial aggravation in order that a judge be required when sentencing an offender to treat it as an aggravating factor.

At Committee, I undertook, in response to an amendment moved by the noble Earl, Lord Mar and Kellie, to table an amendment on the lines of Amendment No. 131A and to make a statement to clarify the proposals contained in the Bill.

It is the Government's intention that the prosecution will be required to libel in an indictment or specify in a complaint that there was racial aggravation. That is clear from the terms of Clause 80.

Perhaps I may deal with the matter which was raised by the noble and learned Lord, Lord Mackay, in his speech this evening. With the greatest of respect to the noble and learned Lord, he suggests that it may be no fault on the part of the prosecutor that the aggravation was not libelled. In investigating offences, particularly offences involving ethnic minorities, I have much more confidence that the police authorities in Scotland and procurators fiscal will be alert to raise those issues at the stage of investigation. I would be astonished if a procurator fiscal failed to include such an aggravation in a charge. I do not anticipate, therefore, that situations will arise where the aggravation was not libelled.

Furthermore, in relation to a jury deleting the aggravation, that is the same as any other aggravation. The jury has heard the evidence and it will be for the jury in a jury case, or for a judge sitting alone in a summary case, to decide whether the aggravation has been made out. If the sheriff sitting alone or the jury decide that the aggravation has not been made out, the proper thing for them to do is to delete the aggravation, just as they would delete any other aggravation.

In that situation, it would be inconceivable that the judge, notwithstanding the verdict of the jury. should take it upon himself to impose a sentence which did not reflect the verdict of the jury; and took it upon himself to conclude that he or she should impose a greater sentence because he or she thought there was racial aggravation, notwithstanding the views of the jury who had heard the evidence and whose responsibility it is to determine the factual basis on which the judge should sentence.

It is clear from the amendment that I tabled that the charge and the complaint in the indictment would require to be established to the normal criminal standard of proof; namely, proof beyond reasonable doubt. But in the amendment I also made clear that the aggravation would not require corroborated evidence. That is entirely fair and appropriate and consistent with our rules of evidence in other crimes in relation to aggravations.

The Government had always intended that the racial aggravation should not require corroboration. Arguably, that is the effect of the clause as it stands, but in view of the concerns raised by the noble and learned Lord, we think it preferable to put the matter beyond doubt by means of Amendment No. 139A. However, the amendment moved by the noble and learned Lord, Lord Mackay of Drumadoon, would remove (or specify) that the offence was racially aggravated. It would also leave the decision on sufficiency of evidence to the judge, notwithstanding the views of the jury, with which I dealt a few moments ago.

Racial aggravation is a serious matter which, if proved, would lead to an increased sentence. An accused person should be given proper notice of such an element when preparing for trial. Whatever the practice in other jurisdictions, it is the practice in Scotland to give accused persons fair and full notice of the charge or charges which they face, including aggravations. It would be no different in the case of racially aggravated offences.

As I indicated, the police and the Crown should be able to identify the aggravation at the stage of investigation to enable charges to be properly framed. I also believe it is appropriate and necessary that the prosecution be required to prove the aggravation before the aggravation can be taken into account at the stage of sentence.

The noble and learned Lord raised the hypothetical case where evidence of racial aggravation might arise during the course of a trial that had not been set out in the charges. It is our belief that where the racial element is sufficiently serious to justify being reflected in the sentence, it would have been evident at the time of the investigation and should properly be taken into account when preparing the charges and should in fact be featured in them to enable the court to impose the higher sentence.

We believe that this provision strikes the right balance between the need to take firm action to combat racial offences and the need to ensure fairness to the accused. In those circumstances, I would ask the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon

My Lords, perhaps I should indicate that, in view of the lateness of the hour, I do not intend to press the amendment. However, I think it appropriate to respond briefly to one or two of the points that the Lord Advocate has made.

First, it was suggested that in some way the comments I made involved a criticism of, or a lack of faith in, the ability of the police or the procurator fiscal service to investigate crimes properly. I made no such suggestion explicitly and I hope that no such suggestion was implicit in anything I said. However, I take the same view as the Lord Justice—General took in his letter that such a motive may emerge during the course of evidence. In my experience as both a prosecutor and as a defence solicitor and counsel, I have had occasions when it was abundantly obvious to all the lawyers in the room that a piece of evidence which had emerged, whether from a Crown witness or a defence witness, had come as a surprise to all concerned. It is that which I had in mind in making the suggestion that I did.

So far as the need to label and prove such aggravations and how it would be inappropriate for a judge to take account of such aggravations in questions of sentence, I cannot get away from a point that has been made on more than one occasion in our debates on the Bill that none of this would be relevant were the offence to be one which was religiously motivated as opposed to one which was racially motivated. Therefore, I remain concerned that this will lead to practical difficulties.

I note that the noble and learned Lord the Lord Advocate did not respond to my invitation to inform your Lordships as to what the court thinks of these proposals, thinks of this clause and thinks of these amendments in view of what was said by the senior judge, the Lord Justice—General, in his letter.

However, having regard to the lateness of the hour, it would not be appropriate to press the amendment to a Division. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hardie moved Amendment No. 131A: Page 69, line 17, leave out ("to the satisfaction of any court").

The noble and learned Lord said: My Lords, I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 132 to 139 not moved.]

Lord Hardie moved Amendment No. 139A: Page 69, line 26, at end insert— ("and evidence from a single source shall he sufficient evidence to establish, for the purposes of this subsection that an offence is racially aggravated.").

The noble and learned Lord said: My Lords, 1 have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 140 not moved.]

Clause 81 [Remands and committals of children and young persons]:

The Deputy Speaker

My Lords, if Amendment No. 141 is agreed to, I shall not be able to call Amendments Nos. 142 or 143.

[Amendment No. 141 not moved.]

Lord Falconer of Thoroton moved Amendment No. 142. Page 69, line 35, leave out ("(5)") and insert ("(4)").

The noble and learned Lord said: My Lords, the Government are grateful to the human rights organisation, Liberty, for drawing the Government's attention to this potential anomaly relating to the legal representation of juveniles awaiting remand to secure accommodation. Clause 81 makes provision for the implementation of court—ordered secure remands. Clause 82 makes alternative arrangements for 15 and 16 year—old boys. In the latter case the current relevant legislation is Section 23 of the Children and Young Persons Act 1969 as modified by the transitory arrangements in Section 62 of the Criminal Justice Act 1991.

Subsection (4A) of Section 23 as modified by those provisions provides that a court shall not remand a 15 or 16 year—old boy to prison who is not legally represented unless he has applied for legal aid and the application was refused upon the grounds he had sufficient means, or having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply. The legal representation restriction is carried forward in Clause 82.

Clause 81, however, is based upon Section 23 of the 1969 Act as substituted by Section 60 of the 1991 Act, without the modifications in Section 62. That version does not contain a legal representation restriction comparable to subsection (4A). The result is that 15 and 16 year—old boys would need to be legally represented before they can be remanded by a court direct to secure accommodation while 12 to 14 year—olds and 15 and 16 year—old girls would not.

These four amendments correct this anomaly so that all juveniles facing the prospect of a court—ordered secure remand will need to be legally represented. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment Nos. 143 and 144:

Page 69, line 36, after ("accommodation),") insert ("for the words "Subject to subsection (5) below," there shall he substituted the words "Subject to subsections (5) and (5A) below,". () In subsection (5) of that section").

Page 69, line 39, at end insert— ("() After that subsection there shall he inserted the following subsection—

"(5A) A court shall not impose a security requirement in respect of a child or young person who is not legally represented in the court unless—

1. (a) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
2. (b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply." ").

On Question, amendments agreed to.

Clause 82 [Remands and committals: alternative provision for 15 or 16 year old boys]:

Lord Falconer of Thoroton moved Amendment No. 145: Page 70, line 12, leave out ("and (5)") and insert ("to (5A)").

On Question, amendment agreed to.

Clause 83 [Power to release short—term prisoners on licence]:

Lord Williams of Mostyn moved Amendment No. 146: Page 71. line 30, after ("prisoner") insert ("aged 18 or over").

The noble Lord said: My Lords, in moving Amendment No. 146, 1 speak also to Amendment Nos. 147, 149, 150, 152 and 211. These amendments relate to those released from prison under home detention curfew on an electronic monitoring basis. Amendments Nos. 146, 149 and 150 restrict release under curfew to those aged 18 or over but with a power to amend that restriction. As regards Amendment No. 147, prisoners who are in custody as a result of breach of an electronically monitored curfew order will not be eligible for release on home detention curfew. Amendment No.152 establishes a means for offenders recalled to prison to be given the reasons for their recall and provides that they can make representations against the decision. Amendment No. 211 provides the phasing in of home detention curfew.

I undertook to respond to the amendment of the noble Baroness, Lady David, which would have made 10 to 15 year—olds ineligible for home detention curfew. We recognised at the time the special considerations applying to them. That is why we are trialling court ordered monitoring orders for 10 to 15 year—olds separately from those for offenders aged 16 and over. We do not want to rule out the possibility that juveniles may at a future date be assisted by being considered for release under home detention curfew. Therefore, we intend to restrict the scheme when it starts to those aged 18 and over, as proposed in Amendment No. 146.

Amendments Nos. 149 and 150 provide, subject to affirmative resolution, that that restriction can be repealed. We shall not take such a step before the trials of the curfew orders on 10 to 15 year—olds have been fully evaluated.

Clause 83 has a list of categories of offenders who will not be eligible for release. I made the point in a letter to the noble Lord, Lord Henley, a copy of which is in the Library, that those who fail to comply with a court ordered electronically monitored curfew order and as a result receive a custodial sentence should not benefit from release. That is the purpose of Amendment No. 147. 1 believe that I have explained Amendment No. 152 sufficiently.

Amendment No. 211 deals with providing a tapered introduction of the home detention curfew, so that there is not an unmanageably large number of releases on the first day of the scheme. With those explanations, I beg to move.

Lord Goodhart

My Lords, I am sorry at this hour to rise in response to the Minister's introduction of this group of amendments. I welcome the fact that by tabling these amendments the noble Lord has done what he undertook to do, which is to provide for pilot schemes to see whether tagging will work for under—16s. In the amendment which the noble Baroness, Lady David, moved in Committee, and which I supported, we pointed out the problems which might arise with the tagging of juveniles under 16. What concerns me is the fact that if the pilot schemes do not work, it appears to be the Government's intention to rule out altogether the possibility of the release on licence of the juveniles who are undergoing such sentences. Therefore, I must express more of a reservation than a welcome to the Minister's amendments, although this is not something on which I would seek to divide the House.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 147: Page 71, line 38, at end insert— ("() the sentence was imposed under paragraph 3(1)(d) or 4(1)(d) of Schedule 2 to this Act in a case where the prisoner had failed to comply with a requirement of a curfew order;").

On Question, amendment agreed to.

Baroness Anelay of St. Johns moved Amendment No. 148: Page 72, line 16, at end insert— ("() The Secretary of State shall publish guidance as to the criteria which will qualify a prisoner for early release under this section.").

The noble Baroness said: My Lords, this amendment would make it a requirement for the Secretary of State to publish guidance as to the criteria which would qualify a prisoner for early release under the provisions of Clause 83.

I moved a similar amendment in Committee and I shall not abuse Report stage proceedings or the patience of noble Lords at this hour by repeating all those arguments at length. However, the nub of the issue is that three months ago, at Second Reading when I raised this issue, the noble Lord, Lord Williams of Mostyn, wrote to my noble friend Lord Henley, stating: I hope that we shall be in a position to show draft guidance on eligibility to the House by the time these provisions are considered in Committee".

In Committee, on 3rd March, the noble and learned Lord, Lord Falconer of Thoroton, responded to my amendment and he reaffirmed that it is the Government's intention to publish the criteria as part of the more detailed guidance that the Prison Service will use to assess suitability for home detention curfew. He said that the Government were currently preparing guidance and hoped to issue it shortly.

I believe that it is important that we have sight of the guidance before Third Reading. I think I am being extremely patient in waiting from Second Reading to Committee and now to Report stage in trying to learn what the Government mean by "shortly". I should be grateful if the noble Lord could tell us tonight—it is almost morning!—what stage that preparation of the guidance has now reached. I beg to move.

Lord Williams of Mostyn

My Lords, the noble Baroness has been patient. Time has passed. Work is still going on with the Prison and Probation Services to make sure that we get the guidance absolutely right. I am sorry that we have not yet been able to make the guidance available. I cannot say anything more attractively positive than that, but as soon as I have any clearer indication I shall write at once to the noble Baroness and ensure that a copy of that letter is placed in the Library.

The assessment will be on the basis of the potential threat to the public, the probability of reoffending or of failure to comply with conditions of curfew. We are in a new area and we have to be patient while officials work on these matters. I recognise that the position is not entirely satisfactory, but truthfully I am not able to give a more positive response.

Baroness Anelay of St. Johns

My Lords, I am grateful to the Minister for his frank reply. I am sure that my patience can be extended a little further. I may well return to this matter at Third Reading in the hope that by then the Minister has been able to conclude his deliberations. I understand that the regulations break new ground and that many different considerations must he taken into account. I cannot say that I am grateful for the extent of the noble Lord's answer but certainly I appreciate his courtesy. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 149: Page 72, line 25. at end insert— ("() repeal the words "aged 18 or over" in subsection (1) above;").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 150: Page 72. line 29, at end insert ("repeal or").

On Question, amendment agreed to.

Clause 84 [Curfew condition to be included in licence]:

[Amendment No.151 not moved.]

Lord Williams of Mostyn moved Amendment No. 152:

Page 73. line 39. at end insert— ("(1A) A person whose licence under section 34A(3) above is revoked under this section—

1. (a) may make representations in writing with respect to the revocation:
2. (b) on his return to prison, shall he informed of the reasons for the revocation and of his right to make representations.

(1B) The Secretary of State, after considering any representations made under subsection (1A)(b) above or any other matters, may cancel a revocation under this section.

(1C) Where the revocation of a person's licence is cancelled under subsection (1B) above, the person shall be treated for the purposes of sections 34A(2)(e) and 37(1B) above as if he had not been recalled to prison under this section.").

On Question, amendment agreed to.

Lord Alton of Liverpool had given notice of his intention to move Amendment No. 153: Before Clause 88, insert the following new clause—

VIDEO RECORDINGS DESIGNATION

(" .—(1) In subsection (1)(a) of section 4 of the Video Recordings Act 1984 ("the 1984 Act") at the end, there shall he inserted the words "and having special regard to the likelihood of video works, in respect of which such certificates have been issued inciting their viewers to anti—social behaviour, crime or disorder".

(2) At the end of section 4 of the 1984 Act there shall he inserted the following new subsection—

"(9) The Secretary of State shall not make any designation under this section unless he is satisfied that adequate arrangements will he made for an appeal in prescribed circumstances against a determination on the grounds that a video work submitted for the issue of a classification is likely to incite its viewers to anti—social behaviour crime or disorder.".").

The noble Lord said: My Lords, more than 50 noble Lords from all parts of the House have generously supported this amendment, but in view of the lateness of the hour I believe that it would be inappropriate to move it. I hope to re-introduce the amendment at Third Reading.

[Amendment No. 153 not moved.]

Lord McIntosh of Haringey moved Amendment No. 154: After Clause 91. insert the following new clause—

DEPUTY AUTHORISING OFFICER UNDER PART III OF POLICE. ACT 1997

(".—(1) In subsection (1) of section 94 of the Police Act 1997 (authorisations given in absence of authorising officer). for the words "(f) or (g)" there shall he substituted the words "(f). (g) or

(2) In subsection (4) of that section the word "and" immediately preceding paragraph (c) shall cease to have effect and after that paragraph there shall he inserted the words "and (d) in the case of an authorising officer within paragraph (h) of section 93(5),means the customs officer designated by the Commissioners of Customs and Excise to act in his absence for the purposes of this paragraph."").

The noble Lord said: My Lords, the purpose of the proposed new clause is to cure a minor but inconvenient defect in Part III of the Police Act 1997. By virtue of this part, police and customs officers may be authorised to enter and interfere with property for the purposes of the prevention or detection of serious crime without fear of claims of civil trespass or criminal damage. Part III is due to come into force early this summer.

The Act provides for a designated officer within each police force or other agency to authorise such operations. In HM Customs and Excise the proposal is to designate the chief investigation officer as the authorising officer. The Act also provides for the various agencies specified in the Act, but not customs, to have designated deputies to the authorising officers to act in their absence. Finally, the Act provides for urgent authorisations lasting 72 hours only to be made in writing by other senior police or customs officers.

The Act in its current form, however, enables the Commissioners of Customs and Excise to designate only one customs officer, the chief investigation officer, as the authorising officer and there is no provision to delegate a deputy to act as the authorising officer in his absence. As the Act currently stands, therefore, the chief investigation officer would be required personally to authorise all such operations or renew in writing within 72 hours every urgent authorisation given in writing by assistant chief investigation officers. This would clearly he impracticable given the other commitments of the chief investigation officer as the head of the Customs National Investigation Service. It is therefore necessary that this clause is introduced to rectify the position by enabling the deputy chief investigation officer to act as the authorising officer in the absence of the chief investigation officer. This clause will mirror the police arrangements under the Act.

With due apologies for appearing in this orchestra as the glockenspiel that plays two notes and then has 1,000 bars of tacet before coming back again. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 155: After Clause 92, insert the following new clause—

DISCLOSURE OF INFORMATION

(" .—(1) Any person who, apart from this subsection would not have power to disclose information—

1. (a) to a relevant authority; or
2. (b) to a person acting on behalf of such an authority,

shall have power to do so in any case where the disclosure is necessary or expedient for the purposes of any provision of this Act.

(2) In subsection (1) above "relevant authority" means—

1. (a) the chief officer of police for a police area in England and Wales:
2. the chief constable of a police force maintained under the Police (Scotland) Act 1967;
936
3. (c) a police authority within the meaning given by section 101(1) of the Police Act 1996;
4. (d) a local authority, that is to say—
1. (i) in relation to England, a county council, a district council, a London borough council or the Common Council of the City of London;
2. (ii) in relation to Wales, a county council or a county borough council;
3. (iii) in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;
5. (e) a probation committee in England and Wales;
6. (f) a health authority.").

The noble Lord said: My Lords, I shall speak also to Amendment No. 160. Amendment No. 155 relates to the sharing of information. I gave an assurance to my noble friend Lady Hilton in Committee about concerns which related to disclosure or use of personal information where necessary or expedient for the purposes of the Bill. The purpose of the new clause is to provide power where there is none to allow for the disclosure by any person of information to relevant authorities or persons acting on their behalf, which is necessary or expedient for the purposes of the Bill.

The authority to share information is essential to the partnership approach to crime and disorder which the Bill requires. Much sharing already occurs between agencies under existing statutory and common law powers; for instance, between police, probation service and others. We are concerned that there should be no gaps.

I shall make three short points. First, the amendment gives a power to disclose. It goes no further than that. Secondly, the disclosure is limited to that to and between the relevant statutory authorities—local authorities, police, probation service and health authorities, and those acting on their behalf. It is limited to what is necessary or expedient for the Bill, and goes no further.

Thirdly, the clause covers only those occasions where the power to disclose does not already exist. It does not therefore override existing powers or interfere with existing conventions or protocols. It merely means that a body or an individual may be certain of the power to disclose information. Amendment No. 160 contains a consequential amendment to ensure that this provision applies also to Scotland. I beg to move.

On Question, amendment agreed to.

Clause 94 [General interpretation]:

Lord Williams of Mostyn moved Amendment No. 156: Page 78, leave out line 20.

The noble Lord said: My Lords, I shall speak to Amendments Nos. 156 to 221. I point out for your Lordships' assistance that Amendments Nos. 168, 177 and 191 have been withdrawn and replaced by Amendments Nos. 168A, 177A and 191A.

I could if pressed, indeed tempted, explain all the amendments in some detail, if only to get our own back. I shall not do that. The purposes of the amendments are dealt with fully, I hope in the letters of 11th and 12th March which I sent to the noble Lord. Lord Henley, and copies of which I placed in the Library. They are technical amendments, and that is why, if it is convenient to your Lordships, at this time, in these circumstances, I shall deal with the amendments in that way.

I have already spoken to other amendments in the group. As I say, I am at your Lordships' disposal, but I do not believe that a further illumination or elucidation will be enormously helpful, bearing in mind, I hope, that the ground has been fully laid, as I indicated. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 157 to 162:

Page 78, line 31, at end insert—

("(1A) In this Act— the 1993 Act" means the Prisoners and Criminal Proceedings (Scotland) Act 1993; and the 1995 Act" means the Criminal Procedure (Scotland) Act 1995.").

Page 79, line 12, after ("section,") insert ("section 91 above").

Page 79, line 26, leave out ("and 91") and insert (", 91 and 94(1A)").

Page 79, line 30, at end insert— ("( ) section (Disclosure of information);").

Page 79, line 33, after ("(3),") insert ("23, 23A,"). Before Schedule 1, insert the following new schedule—

("SCHEDULE

SCHEDULE 2A TO THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982

SECTION 54(2C)

"SCHEDULE 2A

RETENTION AND DISPOSAL OF PROPERTY SEIZED UNDER SECTION

54(2A) OE THIS ACT

Application

1. This schedule applies to property seized under section 54(2A) of this Act.

Retention

2.—(1) Subject to sub-paragraph (2) below, property to which this Schedule applies may be retained for a period of twenty—eight days beginning with the day on which it was seized.

(2) Where proceedings for an offence are instituted within the period specified in sub-paragraph (1) above against any person, the property may he retained for a period beginning on the day on which it was seized and ending on the day when—

1. (a) the prosecutor certifies that the property is not, or is no longer, required as a production in criminal proceedings or for any purpose relating to such proceedings;
2. (b) the accused in such proceedings—
1. (i) is sentenced or otherwise dealt with for the offence; or
2. (ii) is acquitted of the offence: or
3. (c) the proceedings are expressly abandoned by the prosecutor or are deserted simpliciter.

Arrangements for custody of property

3.—(1) Subject to the proviso to section 17(3)(b) of the Police (Scotland) Act 1967 (duty to comply with instructions received from prosecutor), the chief constable shall, in accordance with the provisions of this Schedule, make such arrangements as he considers appropriate for the care, custody, return or disposal of property to which this Schedule applies.

(2) Any reference in this Schedule to property being in the possession of, delivered by or disposed of by, the chief constable includes a reference to its being in the possession of, delivered by or disposed of by, another person under arrangements made under sub-paragraph (1) above.

Disposal

4. Where the period of retention permitted by paragraph 2 above expires and the chief constable has reason to believe that the person from whom the property was seized is not the owner or the person having right to possession of it, he shall take reasonable steps to ascertain the identity of the owner or of the person with that right and to notify him of the procedures determined under paragraph 5(1) below.

5.—(1) Subject to sub-paragraphs (5) and (6) below, the owner or any person having right to possession of any property to which this Schedule applies and which, at the expiry of the period of retention permitted by paragraph 2 above, is in the possession of the chief constable may at any time prior to its disposal under paragraph 6 below claim that property in accordance with such procedure as the chief constable may determine.

(2) Subject to sub-paragraphs (3), (5) and (6) below, where the chief constable considers that the person making a claim in accordance with the procedure determined under sub-paragraph (1) above is the owner of the property or has a right to possession of it, he shall deliver the property to the claimant.

(3) Subject to sub-paragraph (4) below, the chief constable may impose such conditions connected with the delivery to the claimant of property under sub-paragraph (2) above as he thinks fit and without prejudice to that generality, such conditions may relate to the payment of such reasonable charges (including any reasonable expenses incurred in relation to the property by or on behalf of him) as he may determine.

(4) No condition relating to the payment of any charge shall be imposed by the chief constable on the owner or person having right of possession of the property where he is satisfied that that person did not know, and had no reason to suspect that the property to which this Schedule applies was likely to he used in a manner which gave rise to its seizure.

(5) This paragraph does not apply where the period of retention expires in such manner as is mentioned in paragraph 2(2)(b)(i) above and the court by which he was convicted has made a suspended forfeiture order or a restraint order in respect of the property to which this Schedule applies.

(6) This paragraph shall cease to apply where at any time—

1. (a) the property to which this Schedule applies—
1. (i) is seized under any other power available to a constable; or
2. (ii) passes into the possession of the prosecutor; or
2. (b) proceedings for an offence are instituted, where the property to which this Schedule applies is required as a production.

6.—(1) Where this sub-paragraph applies, the chief constable may—

1. (a) sell property to which this Schedule applies; or
2. (b) if in his opinion it would be impracticable to sell such property, he may dispose of it.

(2) Sub-paragraph (1) above applies—

1. (a) at any time after the expiry of the relevant period where, within that period—
1. (i) no claim has been made under paragraph 5 above; or
2. (ii) any such a claim which has been made has been rejected by the chief constable: and
939
2. (b) where a claim has been made under paragraph 5 above and not determined within the relevant period, at any time after the rejection of that claim by the chief constable.

(3) In sub-paragraph (2) above, the "relevant period" means a period of six months beginning with the day on which the period of retention permitted by paragraph 2 above expired.

(4) Sections 71, 72 and 77(1) of this Act shall apply to a disposal under this paragraph as they apply to a disposal under section 68 of this Act.

Appeals

7.—(1) A claimant under sub-paragraph (2) of paragraph 5 above may appeal to the sheriff against any decision of the chief constable made under that paragraph as respects the claim.

(2) The previous owner of any property disposed of for value under paragraph 6 above may appeal to the sheriff against any decision of the chief constable made under section 72 of this Act as applied by sub-paragraph (4) of that paragraph.

(3) Subsections (3) to (5) of section 76 of this Act shall apply to an appeal under this paragraph as they apply to an appeal under that section.

Interpretation

8. In this Schedule— chief constable" means the chief constable for the police area in which the property to which this Schedule applies was seized, and includes a constable acting under the direction of the chief constable for the purposes of this Schedule; restraint order" shall be construed in accordance with section 28(1) of the Proceeds of Crime (Scotland) Act 1995; suspended forfeiture order" shall be construed in accordance with section 21(2) of that Act." ").

On Question, amendments agreed to.

Schedule 2 [Procedure where persons are sent for trial under section 42]:

Lord Williams of Mostyn moved Amendments Nos. 163 and 164:

Page 83, leave out lines 39 to 41 and insert ("shall, on or before the relevant date—

1. (a) be served on that person; and
2. (b) be given to the Crown Court sitting at the place specified in the notice under subsection (5) of that section.

(2) In sub-paragraph (1) above "the relevant date" means the date prescribed by the regulations.").

Page 86, line 4, at end insert—

("Power of justice to take depositions etc.

.—(1) Sub-paragraph (2) below applies where a justice of the peace for any commission area is satisfied that—

1. (a) any person in England and Wales ("the witness") is likely to be able to make on behalf of the prosecutor a written statement containing material evidence, or produce on behalf of the prosecutor a document or other exhibit likely to be material evidence, for the purposes of proceedings for an offence for which a person has been sent for trial under section 42 of this Act by a magistrates' court for that area; and
2. (b) the witness will not voluntarily make the statement or produce the document or other exhibit.

(2) In such a case the justice shall issue a summons directed to the witness requiring him to attend before a justice at the time and place appointed in the summons, and to have his evidence taken as a deposition or to produce the document or other exhibit.

(3) If a justice of the peace is satisfied by evidence on oath of the matters mentioned in sub-paragraph (1) above, and also that it is probable that a summons under sub-paragraph (2) above would not procure the result required by it, the justice may instead of issuing a summons issue a warrant to arrest the witness and to bring him before a justice at the time and place specified in the warrant.

(4) A summons may also be issued under sub-paragraph (2) above if the justice is satisfied that the witness is outside the British Islands, but no warrant may be issued under sub-paragraph (3) above unless the justice is satisfied by evidence on oath that the witness is in England and Wales.

(5) If—

1. (a) the witness fails to attend before a justice in answer to a summons under this paragraph;
2. (b) the justice is satisfied by evidence on oath that the witness is likely to be able to make a statement or produce a document or other exhibit as mentioned in sub-paragraph (1)(a) above;
3. (c) it is proved on oath, or in such other manner as may be prescribed, that he has been duly served with the summons and that a reasonable sum has been paid or tendered to him for costs and expenses; and
4. (d) it appears to the justice that there is no just excuse for the failure,

the justice may issue a warrant to arrest the witness and to bring him before a justice at the time and place specified in the warrant.

(6) Where—

1. (a) a summons is issued under sub-paragraph (2) above or a warrant is issued under sub-paragraph (3) or (5) above; and
2. (b) the summons or warrant is issued with a view to securing that the witness has his evidence taken as a deposition,

the time appointed in the summons or specified in the warrant shall be such as to enable the evidence to be taken as a deposition before the relevant date.

(7) If any person attending or brought before a justice in pursuance of this paragraph refuses without just excuse to have his evidence taken as a deposition, or to produce the document or other exhibit, the justice may do one or both of the following—

1. (a) commit him to custody until the expiration of such period not exceeding one month as may be specified in the summons or warrant or until he sooner has his evidence taken as a deposition or produces the document or other exhibit;
2. (b) impose on him a fine not exceeding £2,500.

(8) A fine imposed under sub-paragraph (7) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.

(9) If in pursuance of this paragraph a person has his evidence taken as a deposition, the clerk of the justice concerned shall as soon as is reasonably practicable send a copy of the deposition to the prosecutor and the Crown Court.

(10) If in pursuance of this paragraph a person produces an exhibit which is a document, the clerk of the justice concerned shall as soon as is reasonably practicable send a copy of the document to the prosecutor and the Crown Court.

(11) If in pursuance of this paragraph a person produces an exhibit which is not a document, the clerk of the justice concerned shall as soon as is reasonably practicable inform the prosecutor and the Crown Court of that fact and of the nature of the exhibit.

(12) In this paragraph— prescribed" means prescribed by rules made under section 144 of the 1980 Act; the relevant date" has the meaning given by paragraph 1(2) above.").

On Question, amendments agreed to.

Schedule 3 [Enforcement etc. of drug treatment and testing orders]:

Lord Williams of Mostyn moved Amendment No. 165:

Page 92, line 40, at end insert— ("( ) Paragraph 6A above shall apply for the purposes of this paragraph as it applies for the purposes of paragraph 3 above, but as if for the words "paragraph 3(1)(d) above" there were substituted the words "paragraph 14A(5)(b) below".").

On Question, amendment agreed to.

Schedule 4 [Enforcement etc. of reparation and action plan orders]:

Lord Williams of Mostyn moved Amendment No. 166: Page 95, line 42, after ("from") insert ("subsection (4B) of section 18 and").

On Question, amendment agreed to.

Schedule 6 [Pre-consolidation amendments: powers of criminal courts]:

Lord Williams of Mostyn moved Amendments Nos. 167 to 196:

Page 99, line 15, at end insert— ("(3) After subsection (5) of that section there shall be added the following subsection— (6) In relation to any other child or young person, references in this section to his parent shall be construed in accordance with section 1 of the Family Law Reform Act 1987." ").

Page 99, leave out line 25 and insert— ("(3) Subsection (3) of that section shall cease to have effect.

(4) For subsection (5) of that section there shall be substituted the following subsections—

"(5) Where under subsection (1) above a magistrates' court commits a person to he dealt with by the Crown Court in respect of an offence, the Crown Court may after inquiring into the circumstances of the case deal with him in any way in which the magistrates' court could deal with him if it had just convicted him of the offence.

(5A) Subsection (5) above does not apply where under subsection (1) above a magistrates' court commits a person to be dealt with by the Crown Court in respect of a suspended sentence, but in such a case the powers under section 23 of the Powers of Criminal Courts Act 1973 (power of court to deal with suspended sentence) shall be exercisable by the Crown Court.

(5B) Without prejudice to subsections (5) and (5A) above, where under subsection (1) above or any enactment to which this section applies a magistrates' court commits a person to be dealt with by the Crown Court, any duty or power which, apart from this subsection, would fall to be discharged or exercised by the magistrates' court shall not be discharged or exercised by that court but shall instead be discharged or may instead be exercised by the Crown Court.

(5C) Where under subsection (1) above a magistrates' court commits a person to be dealt with by the Crown Court in respect of an offence triable only on indictment in the case of an adult (being an offence which was tried summarily because of the offender's being under 18 years of age), the Crown Court's powers under subsection (5) above in respect of the offender after he attains the age of 18 years shall be as follows—

1. (a) it may impose a fine not exceeding £5,000; or
2. (b) it may deal with the offender in respect of the offence in any way in which the magistrates' court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.

(5D) For the purposes of this section the age of an offender shall be deemed to be that which it appears to the court to be after considering any available evidence."

(5) Subsection (13) of that section shall cease to have effect.").

Page 99, line 27, leave out ("section 7(8)") and insert ("subsection (8) of section 7").

Page 99, line 30, at end insert— ("(2) After that subsection there shall be added the following subsection— (9) The reference in subsection (8) above to a person's parent shall be construed in accordance with section 1 of the Family Law Reform Act 1987 (and not in accordance with section 70(1A) of this Act)." ").

Page 99, line 44, at end insert— ("( ) for the words "his detention in pursuance of a hospital order under Part III" there shall be substituted the words "the making of a hospital order or guardianship order within the meaning";").

Page 99, line 46, at end insert— ("( ) after that paragraph there shall be inserted the following paragraph— (aa) treatment by or under the direction of a chartered psychologist specified in the order;";").

Page 100, line 5, at end insert ("and "chartered psychologist" means a person for the time being listed in the British Psychological Society's Register of Chartered Psychologists." ").

Page 100, line 5, at end insert— ("(3) After subsection (2) of that section there shall be added the following subsection— (3) Subsections (2) and (3) of section 54 of the Mental Health Act 1983 shall have effect with respect to proof for the purposes of subsection (1) above of a supervised person's mental condition as they have effect with respect to proof of an offender's mental condition for the purposes of section 37(2)(a) of that Act." ").

Page 100, line 8, leave out from ("In") to third ("of') and insert ("subsection (1)(a) of section 16A of the 1969 Act (application of sections 17 to 19").

Page 100, line 10, at end insert— ("(2) In subsection (2)(b) of that section—

1. (a) in sub-paragraph (i), after the word "from" there shall be inserted the words "subsection (4A) of section 18 and"; and
2. (b) in sub-paragraph (ii), for the words "subsection (6)" there shall be substituted the words "subsection (4B) of section 18 and subsection (6) of section 19".").

Page 100, line 41, at end insert— (".—(1) In subsection (9) of section 1B of the 1973 Act (commission of further offence by person conditionally discharged), for the words from "those which" to the end there shall be substituted the words "powers to do one of the following—

1. (a) to impose a fine not exceeding £5,000 for the offence in respect of which the order was made; or
2. (b) to deal with the offender for that offence in any way in which a magistrates' court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.

(2) Subsection (10) of that section (which is superseded by provision inserted by this Schedule in section 57 of the 1973 Act) shall cease to have effect.").

Page 100, line 43, after ("discharge),") insert— ("(a) in paragraph (a), for the words "the following provisions" there shall be substituted the words "section 1B"; and (b)")

Page 100, line 44, at end insert— (". In section 2(1) of the 1973 Act (probation orders), the words from "For the purposes" to "available evidence" (which are superseded by provision inserted by this Schedule in section 57 of the 1973 Act) shall cease to have effect.").

Page 101, line 22, leave out from beginning to ("for") in line 23 and insert—

(".—(1) In subsection (1) of section 14 of the 1973 Act (community service orders in respect of convicted persons), after the word "imprisonment", in the first place where it occurs, there shall be inserted the words "(not being an offence the sentence for which is fixed by law or falls to be imposed under section 2(2), 3(2) or 4(2) of the Crime (Sentences) Act 1997)".

(2) In that subsection, after the words "young offenders" there shall he inserted the words "; and for the purposes of this subsection a sentence falls to be imposed under section 2(2), 3(2) or 4(2) of the Crime (Sentences) Act 1997 if it is required by that provision and the court is not of the opinion there mentioned".

(3) In subsection (7) of that section,").

Page 102, line 2, at end insert—

("( ) In subsection (6) of that section—

1. (a) the words "about committal by a magistrates' court to the Crown Court" shall cease to have effect; and
2. (b) after the words "dealt with him" there shall be inserted the words "or could deal with him".").

Page 102, line 20, at end insert—

(". In section 46 of the 1973 Act (reports of probation officers), after subsection (2) there shall be added the following subsection—

"(3) For the purposes of this section—

1. (a) references to an offender's parent shall be construed in accordance with section 1 of the Family Law Reform Act 1987; and
2. (b) "guardian" has the same meaning as in the Children and Young Persons Act 1933." ").

Page 102, line 30, at end insert—

("(2) After subsection (6) of that section there shall be added the following subsection—

"(7) For the purposes of any provision of this Act which requires the determination of the age of a person by the court, his age shall be deemed to he that which it appears to the court to he after considering any available evidence." ").

Page 103, line 19, at end insert—

(" .—(1) In subsection (2) of section 38 of the 1980 Act (committal for sentence on summary trial of offence triable either way), the words ", in accordance with section 56 of the Criminal Justice Act 1967," shall cease to have effect.

(2) After that subsection there shall be inserted the following subsection—

"(2A) Where the court commits a person under subsection (2) above, section 56 of the Criminal Justice Act 1967 (which enables a magistrates' court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly."

.—(1) In subsection (2) of section 38A of the 1980 Act (committal for sentence on indication of guilty plea to offence triable either way), the words ", in accordance with section 56 of the Criminal Justice Act 1967," shall cease to have effect.

(2) In subsection (5) of that section, for the words "the court might have dealt with him" there shall be substituted the words "the magistrates' court could deal with him if it had just convicted him of the offence".

(3) After that subsection there shall be inserted the following subsection—

"(5A) Where the court commits a person under subsection (2) above, section 56 of the Criminal Justice Act 1967 (which enables a magistrates' court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly." ").

Page 103, line 43, leave out from beginning to ("there") in line 44 and insert—

(".—(1) In subsection (1) of section 17 of the 1982 Act (attendance centre orders), for the words "Subject to subsections (3) and (4) below," there shall be substituted the words "Where a person under 21 years of age is convicted by or before a court of an offence punishable with imprisonment (not being an offence the sentence for which is fixed by law or falls to be imposed under section 2(2), 3(2) or 4(2) of the Crime (Sentences) Act 1997), or".

(2) In that subsection, for paragraph (a) there shall he substituted the following paragraph— (a) would have power, but for section 1 above, to commit a person under 21 years of age to prison in default of payment of any sum of money or for failing to do or abstain from doing anything required to he done or left undone, or".

(3) In that subsection, in paragraph (b), for the words "any such person" there shall be substituted the words "a person under 21 years of age" and after that paragraph").

Page 103, line 47, at end insert—

("( ) After that subsection there shall be inserted the following subsection—

"(1A) For the purposes of subsection (1) above—

1. (a) the reference to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment on the imprisonment of young offenders; and
2. (b) a sentence falls to be imposed under section 2(2), 3(2) or 4(2) of the Crime (Sentences) Act 1997 if it is required by that provision and the court is not of the opinion there mentioned." ").

Page 104, line 10, at end insert—

(" .—(1) In section 18 of the 1982 Act (discharge and variation of attendance centre orders), for subsection (4A) there shall be substituted the following subsections—

"(4A) Any power conferred by this section—

1. (a) on a magistrates' court to discharge an attendance centre order made by such a court, or
2. (b) on the Crown Court to discharge an attendance centre order made by the Crown Court,

includes power to deal with the offender, for the offence in respect of which the order was made, in any manner in which he could have been dealt with for that offence by the court which made the order if the order had not been made.

(4B) A person sentenced by a magistrates' court under subsection (4A) above for an offence may appeal to the Crown Court against the sentence."

(2) Subsection (7) of that section shall cease to have effect.

(3) In that section, after subsection (9) there shall be added the following subsections—

"(10) Where an offender has been ordered to attend at an attendance centre in default of the payment of a sum of money or for such a failure or abstention as is mentioned in section 17(1)(a) above, subsection (4A) above shall have effect in relation to the order as if the words ", for the offence in respect of which the order was made," and "for that offence" were omitted.

(11) Where an attendance centre order has been made on appeal, for the purposes of this section it shall be deemed—

1. (a) if it was made on an appeal brought from a magistrates' court, to have been made by that magistrates' court;
2. (b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court;

and subsection (4A) above shall have effect in relation to an attendance centre order made on appeal as if the words "if the order had not been made" were omitted."

.—(1) In subsection (1) of section 19 of the 1982 Act (breaches of attendance centre orders or attendance centre rules), for the words "has been made" there shall be substituted the words "is in force".

(2) In subsection (5) of that section, after the word "failed" there shall be inserted the words "without reasonable excuse".

(3) After subsection (7) of that section there shall be added the following subsections—

"(8) Where an offender has been ordered to attend at an attendance centre in default of the payment of a sum of money or for such a failure or abstention as is mentioned in section 17(1)(a) above, subsections (3) and (5) above shall have effect in relation to the order as if the words ", for the offence in respect of which the order was made," and "for that offence" were omitted.

(9) Where an attendance centre order has been made on appeal, for the purposes of this section it shall be deemed—

1. (a) if it was made on an appeal brought from a magistrates' court, to have been made by that magistrates' court;
2. (b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court;

and, in relation to an attendance centre order made on appeal, subsection (3)(a) above shall have effect as if the words "if the order had not been made" were omitted and subsection (5) above shall have effect as if the words "if it had not made the order" were omitted." ").

Page 104, line 48, at end insert—

(". In each of subsections (3)(b) and (4)(a) of section 57 of the 1991 Act (responsibility of parent of guardian for financial penalties), for the words "section 35(4)(a)" there shall be substituted the words "section 35(4)".").

Page 105, line 3, after ("section,") insert— ("(a) "guardian" has the same meaning as in the 1933 Act; and (b)")

Page 106, line 19, leave out from ("offence"") to end of line 20.

Page 106, line 20, at end insert— ("( ) After paragraph 6 of that Schedule there shall be inserted the following paragraph—

"6A.—(1) Where a relevant order was made by a magistrates' court in the case of an offender under 18 years of age in respect of an offence triable only on indictment in the case of an adult, any powers exercisable under paragraph 3(1)(d) above by that or any other court in respect of the offender after he has attained the age of 18 years shall be powers to do one of the following—

1. (a) to impose a fine not exceeding £5,000 for the offence in respect of which the order was made; or
2. (b) to deal with the offender for that offence in any way in which a magistrates' court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.

(2) In sub-paragraph (1)(b) above any reference to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment on the imprisonment of young offenders."

( ) In paragraph 7(5) of that Schedule, after the word "above" there shall be inserted the words "for an offence".").

Page 107, line 31, leave out from beginning to ("Where") in line 32 and insert ("paragraphs— 11A. Paragraph 6A above shall apply for the purposes of paragraphs 7 and 8 above as it applies for the purposes of paragraph 3 above, but as if in paragraph 6A(1) for the words "powers exercisable under paragraph 3(1)(d) above" there were substituted the words "powers to deal with the offender which are exercisable under paragraph 7(2)(a)(ii) or 8(2)(b) below". 11B.").

Page 108, line 10, at end insert— (" .—(1) In subsection (2)(a) of section 35 of the 1997 Act (community sentences for fine defaulters), for the words "and (11)" there shall be substituted the words ", (10) and (11)". (2) In subsection (5) of that section, paragraph (c) shall cease to have effect. (3) In that subsection, the word "and" at the end of paragraph (d) shall cease to have effect and after paragraph (e) there shall be added the following paragraphs— (f) the reference in paragraph 7(1)(b) of that Schedule to the offence in respect of which the order was made shall be construed as a reference to the default in respect of which the order was made; (g) the power conferred by paragraph 7(2)(a)(ii) of that Schedule to deal with an offender for the offence in respect of which the order was made shall be construed as a power to deal with the person in respect of whom the order was made for his default in paying the sum in question; and (h) paragraph 8(2)(b) of that Schedule shall not apply. (4) In subsection (7) of that section, for the words "section 12(5)" there shall be substituted the words "section 12(6)". (5) In subsection (8) of that section, the word "and" at the end of paragraph (a) shall cease to have effect and after paragraph (b) there shall be added the following paragraphs— (c) the reference in paragraph 7(1)(b) of that Schedule to the offence in respect of which the order was made shall be construed as a reference to the default in respect of which the order was made; (d) the power conferred by paragraph 7(2)(a)(ii) of that Schedule to deal with an offender for the offence in respect of which the order was made shall be construed as a power to deal with the person in respect of whom the order was made for his default in paying the sum in question; and (e) paragraph 8(2)(b) of that Schedule shall not apply. (6) In subsection (10) of that section, for the words "subsection (2)(b)" there shall be substituted the words "subsection (2)(a) or (b)".

.—(1) In subsection (3) of section 37 of the 1997 Act (community sentences for persistent petty offenders)—

1. (a) in paragraph (a), for the words "(4) and (6)" there shall be substituted the words "(4), (5A) and (6)"; and
2. (b) in paragraph (b), for the words "(5) and (6)" there shall be substituted the words "(5), (5A) and (6)".

(2) For subsections (4) and (5) of that section there shall be substituted the following subsections— (4) In this section "community service order" has the same meaning as in the 1973 Act and—

1. (a) section 14(2) of that Act; and
2. (b) so far as applicable, the other provisions of that Act relating to community service orders and the provisions of Part I of the 1991 Act so relating,

shall have effect in relation to an order under subsection (3)(a) above as they have effect in relation to a community service order made under the 1973 Act in respect of an offender.

(5) In this section "curfew order" has the same meaning as in Part I of the 1991 Act and—

1. (a) section 12(6) of that Act; and
2. (b) so far as applicable, the other provisions of that Part relating to curfew orders,

shall have effect in relation to an order under subsection (3)(b) above as they have effect in relation to a curfew order made under that Act in respect of an offender.

(5A) A court shall not make an order under subsection (3)(a) or (b) above in respect of a person who is under 16."").

Page 108, line 10, at end insert— (". In section 50 of the 1997 Act (disclosure of pre-sentence reports), after subsection (6) there shall be added the following subsection— (7) In this section "guardian" has the same meaning as in the 1933 Act."").

Page 108, line 10, at end insert—

(". In section 54 of the 1997 Act (general interpretation), after subsection (3) there shall be added the following subsection—

"(4) For the purposes of any provision of this Act which requires the determination of the age of a person by the court, his age shall be deemed to be that which it appears to the court to be after considering any available evidence." ").

Page 108, line 10, at end insert— (". In section 55(2) of the 1997 Act (interpretation of minor and consequential amendments), for the words "in any case where" (in both places where they occur) there shall be substituted the word "and"").

On Question, amendments agreed to.

Schedule 7 [Minor and consequential amendments]:

Lord Williams of Mostyn moved Amendments Nos. 197 to 210. Page 109, line 44, at end insert—

("Criminal Appeal Act 1968 (c. 19)

. In subsection (3) of section 10 of the Criminal Appeal Act 1968 (appeal against sentence in other cases dealt with at Crown Court), after paragraph (c) there shall be inserted the following paragraph— (cc) where the court makes such an order with regard to him as is mentioned in section 40(2) of the Criminal Justice Act 1991." ").

Page 110, leave out lines 43 to 47 and insert—

(" "(1A) Subsection (1)(b) above has effect subject to section 54(4) of the Crime and Disorder Act 1998 (effect of reprimands and warnings)." ").

Page 111, leave out lines 18 to 28 and insert—

("19. After subsection (8) of section 14 of the 1973 Act (community service orders) there shall be inserted the following subsection—

"(9) In the case of an offender under the age of 18 years—

1. (a) references in subsections (2), (5)(c) or (6) above to a probation officer include references to a member of a youth offending team; and
2. (b) the reference in subsection (4) to a probation officer appointed for or assigned to the area for the time being specified in the order includes a reference to a member of a youth offending team established by the local authority within whose area it appears to the court that the offender resides or will reside." ").

Page 111, line 30, at end insert—

(". In subsection (1) of section 46 of the 1973 Act (reports of probation officers), after the words "probation officer" there shall be inserted the words "or a member of a youth offending team".").

Page 111, line 45, at end insert—

("( ) After that paragraph there shall be inserted the following paragraph—

"Interpretation

7. In the case of an offender under the age of 18 years, references in this Schedule to a probation officer include references to a member of a youth offending team."").

Page 112, line 7, at end insert—

("23A. In subsection (2) of section 7 of that Act (limitations on rehabilitation under Act etc.), after paragraph (b) there shall be inserted the following paragraph— (bb) in any proceedings on an application for a sex offender order under section 2 or, as the case may be, 19 of the Crime and Disorder Act 1998 or in any appeal against the making of such an order;".").

Page 119, line 2, leave out ("subsection") and insert ("subsections").

Page 119, line 6, at end insert—

("(6) For the purposes of any enactment conferring rights of appeal in criminal cases, any such order as is mentioned in subsection (2) above made with regard to any person shall be treated as a sentence passed on him for the offence for which the sentence referred to in subsection (1) above was passed."").

Page 120, line 40, leave out ("In sub-paragraph (1)(d) of paragraph 3") and insert ("After sub-paragraph (4) of paragraph 1").

Page 120, line 41, after ("orders),") insert ("there shall be inserted the following sub-paragraph—

"(5) Where a drug treatment and testing order has been made on an appeal brought from the Crown Court, or from the criminal division of the Court of Appeal, for the purposes of this Schedule it shall be deemed to have been made by the Crown Court."

( ) In sub-paragraph (1)(d) of paragraph 3 of that Schedule").

Page 121, line 15, leave out ("Prisoners and Criminal Proceedings (Scotland) Act 1993") and insert ("1993 Act").

Page 121, line 24, leave out ("that") and insert ("the 1993").

Page 121, line 30, leave out ("that") and insert ("the 1993").

Page 123, line 17, leave out ("("the 1998 Act")"). On Question, amendments agreed to.

Schedule 8 [Transitional provisions and savings]:

Lord Williams of Mostyn moved Amendment No. 211: Page 128, line 30, at end insert—

("Power to release short-term prisoners on licence

.—(1) Section 83 of this Act does not apply in relation to a prisoner who, immediately before the commencement of that section, has served one or more days more than the requisite period for the term of his sentence.

(2) In this paragraph "the requisite period" has the same meaning as in section 34A of the 1991 Act (which is inserted by section 83 of this Act).").

On Question, amendment agreed to.

Schedule 9 [Repeals]:

Lord Williams of Mostyn moved Amendments Nos. 212 to 221:

Page 130, line 14, column 3, leave out ("34(1)(c)") and insert ("34, in subsection (1), paragraph (a) and, in paragraph (c)").

Page 130, line 23, column 3, at beginning insert—

("Section 1B(10).")

Page 130. line 27, column 3, at end insert—

("and the words from "For the purposes" to "available evidence"")

Page 130, line 34, column 3, leave out second ("and").

Page 130, line 35, column 3, at end insert—

(", and, in subsection (6), the words "about committal by a magistrates' court to the Crown Court"")

Page 130, line 47, column 3, at end insert—

("In sections 38(2) and 38A(2), the words ", in accordance with section 56 of the Criminal Justice Act 1967,".")

Page 131, line 3, column 3, at end insert—

("Section 18(7).")

Page 132, line 24, column 3, leave out ("section 35(19(a),") and insert—

("section 35, in subsection (5), paragraph (c) and the

word "and" at the end of paragraph (d), and in subsection (8), in paragraph (a),")

Page 132, line 28, column 3, at end insert—

("and the word "and" at the end of that paragraph")

Page 133, line 54, at end insert—

("1997 c.50.

Police Act 1997.

In section 94(4), the word "and" immediately preceding paragraph (c).")

On Question, amendments agreed to.

House adjourned at twelve minutes before midnight.